The forgotten elements in the debate on the limiting of the action for repayment of the cost unduly charged to the consumer: the “limitation objection abuse”, the absence of “causa retinendi” and “legal realism” (Second part)

Abstract

Three elements are of capital importance in assuming that the legal action for the refunding of formalization, novation or cancellation costs unduly charged to the consumer by an unfair term in a standard loan contract covered by the Directive 93/13 can be as much independent of the invalidity action from which it derives as to be subject to a limitation period, in conformity with the principles of effectiveness and legal certainty embodied in the requirement by the ECJ of  “reasonable” time limits for exercising the right to claim the refunding of amounts unduly paid:

• The application of the German doctrine of "limitation objection abuse" when the appearance has been created that such an objection will not be raised by the beneficiary; because said beneficiary cannot ignore the notoriety and publicity of resolutions declaring the clause drafted by himself invalid by reason of unfairness.
• The absence of the “causa retinendi” of the patrimonial displacement of the “negative unjust enrichment” principle; because the object of the action for repayment, which is to claim the reimbursement of payments made to third parties and not to the lender, cannot be housed in the “synalagma” of article 1303 of the Civil Code; and
• “Legal realism”, after passing through the necessary objectification of the “subjective criterion" of the dies a quo of the limitation period; because, by putting in parallel the jurisprudence with the legal rules in the system of sources of law, it makes our option of considering as dies a quo of the restitution action, the date of January 23, 2019, which is that of the "uniform rulings of the Supreme Court", judicious.

We will see if the Court of Luxembourg agrees with us or if it prefers to opt for one of these other three options raised by the SC and Section 15 AP Barcelona in their respective orders raising a preliminary question: the date of the judgment of the Court of Justice in joined cases C-698/18 and 699/18, or in joined cases C-224/19 and C-259/19; the date of the declaration of nullity of the clause as abusive in the specific case, or the date of payment of the unduly charged expenses.