ON THE PROBLEMS DERIVIRNG FROM THE APPLICATION OF LAW 1/2013, THE «ANTI-EVICTION» LAW, AND COUNCIL DIRECTIVE 93/13/EEC OF 5 APRIL 1993, IN RECENT NATIONAL CASELAW

Abstract

The implementation of the «anti-eviction» Law 1/2013 is causing many problems, especially with regard to its Second Transitional Provision (relating to default interest on mortgage-backed loans secured on a person's main residence), in relation to the new section 3 of article 114 of the Mortgage Law, relating to the cap imposed on the said default interest. The most disputed question is the determination of the legal consequences arising in the event the judge decides that the clause on default interest is unfair, and in respect of this problem, three pre-trial questions have been submitted before the European Court of Justice, as well as ample caselaw reaching diverse conclusions. Meanwhile, an appeal for unconstitutionality has been filed before the Constitutional Court, along with a question of unconstitutionality in relation to the possible lack of a level playing field that would leave the mortgagor short of procedural resources when appealing the foreclosure order and the order concluding the opposition hearing dismissing the appeal filed by the mortgagor alleging that the executive title contains unfair clauses. Another possible lack of a level playing field in terms of the procedural resources available to the mortgagor is also being questioned before the Constitutional Court in relation to the procedure for extra-judicial sale, given that the mortgagor is compelled to perform a positive act in challenging the unfair clauses before the Courts in order to be able to suspend the sale.