Full restitution of amounts agreed ex officio after the annulment of the abusive clause: the STJUE of May 17, 2022

Abstract

After the controversy of the floor clauses and the limitation of the restitution effects of amounts improperly collected for their application, and when the CJEU had already established doctrine in the sense that such restitution effects could not be limited in any way (STJUE of December 21 of 2016), a new controversy arose: is it possible to apply ex officio that doctrine of the CJEU, even though that specific pronouncement of the sentence has not been challenged or would this imply going against the procedural principles of consistency, requested justice and prohibition of reformatio in peius? For this reason, the Supreme Court raised a new question for a preliminary ruling before the CJEU, resolved by its judgment of May 17, 2022, which, in certain circumstances, fundamentally due to non-appreciation of the total passivity of the consumer, affirms that action must be taken ex officio by the Court.