It should also be taken into account whether the consumer knows his rights and has enough time to complain.


The Court of Justice of the European Union (CJEU) ruled this Thursday that the period to claim mortgage expenses will not begin to run before a consumer becomes aware of the abusive nature of a contractual clause and points out that the ten-year limitation period It can only be applied if the consumer was able to know his rights before said period began to run or expired.

The ruling also highlights that the consumer, in addition to knowing his rights, must have sufficient time to prepare and effectively file an appeal in order to invoke those rights against clauses of an abusive nature.

The ruling highlights that, for the rules governing a limitation period to be in accordance with the principle of effectiveness, it is not enough for them to establish that the consumer must know the facts determining the abusive nature of a contractual clause, without taking into account It does not matter, on the one hand, whether it is aware of the rights conferred on it by the Unfair Terms Directive and, on the other hand, whether it has sufficient time to prepare and effectively bring an action in order to invoke those rights.

Therefore, a limitation period such as the period for claiming mortgage expenses at issue in national litigation is not in accordance with the principle of effectiveness, since the rules governing it do not take these last two factors into account.

The Court of Justice recalls that the protection system of the directive is based on the idea that the consumer is in a situation of inferiority compared to the professional, in particular with regard to the level of information, a situation that leads him to adhere to the conditions written in advance by the professional without being able to influence their content.

Therefore, it points out that when there is consolidated national jurisprudence in which the abusive nature of certain standard clauses has been recognized, it is to be expected that banking entities are aware of it and act accordingly.

In this sense, it emphasizes that it cannot be assumed that the information available to the consumer, which is scarcer than that of the professional, includes knowledge of national jurisprudence on consumer rights, despite the fact that said jurisprudence is consolidated.

Furthermore, it points out that although professionals may be required to keep themselves informed of the relative legal aspects, a similar attitude cannot be expected on the part of consumers, taking into account the occasional, or even exceptional, nature that holding of meetings has for them. a contract containing such a clause.