I

In the last few years since the government and the General Cortes, a large number of initiatives have been addressed that regulate different aspects of mortgage loans, especially to alleviate and address the social problems of foreclosures and housing, exacerbated by the economic crisis that Spain has gone through. The regulation of the European Union for the Protection of Consumers and the pronouncements of the national courts and the Court of Justice of the European Union have also served to ensure that the Spanish legislation has made progress. significant in this field.

Following this line, the actual decree-law aims to advance measures aimed at protecting consumers by establishing a channel to facilitate the possibility of reaching agreements with credit institutions. with which a loan or credit agreement is concluded with a mortgage guarantee to settle disputes which may arise as a result of the last judicial decisions on ground clauses and, in particular, the judgment of the Court of Justice of the European Union of 21 December 2016, in the joined cases C-1 5 4/15, C-307/15 and C-308/15.

II

On May 9, 2013, the Supreme Court analyzed in its judgment No. 241/2013, in the framework of a collective action exercised by a consumer association against several banking entities, the abusive nature of the clauses land, declaring its nullity. However, the declaration of invalidity would not affect the situations definitively decided by judicial decisions with the force of res judicata or the quantities satisfied before 9 May 2013.

The Supreme Court considered that the clauses examined, the so-called ground clauses, while they exceeded the formal transparency control for the purposes of their inclusion as a general condition of the contracts, did not the control of material transparency required in the clauses of the contracts concluded with consumers, and declared the nullity of the clauses, but not of the contracts in which they were inserted, whose subsistence maintained despite that partial nullity declaration.

The Supreme Court temporarily limited retroactivity and was founded on three grounds: (i) the ground clauses are not considered to be abusive in themselves, but their abuse derives from the lack of material or substantive transparency on the particular content of their incorporation into the contract; (ii) the good faith of the circle of stakeholders -since the credit institutions had complied with the sectoral rules on transparency; and (iii) the fact, which the Supreme Court described as notorious, that such retroactivity would cause serious disruption to the economic public order.

The limitation of retroactive effectiveness was confirmed by the Supreme Court in judgment of 25 March 2015 in an individual action brought against one of the parties in the judicial process resolved by the Supreme Court. the judgment of 9 May 2013. It has been established as a doctrine that, when a ground clause is declared to be abusive in application of the doctrine laid down in the 2013 judgment, the repayment to the borrower shall be made from the date of publication of the 2013 judgment.

However, several Spanish courts have challenged the case law of the Supreme Court on the basis of European Union law before the Court of Justice of the European Union through a number of preliminary rulings. On 21 December 2016, the Court of Justice of the European Union has delivered a judgment in Joined Cases C-1 5 4/15, C-307/15 and C-308/15 in response to these questions.

In that case, the Court has ruled that Article 6 (1) of Council Directive 93 /13/EEC on unfair terms in contracts concluded with consumers must be interpreted as meaning that it is not The Court held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that the Court of Justice held that consumer by a professional, circumscribing such restitutional effects exclusively to the amounts unduly paid in application of such a clause after the judgment of the court of law declaring the abusive nature of the clause in question.

The Court of Justice has founded the ruling in two essential arguments. First, the judgment considers that the assessment of the abuse for lack of material transparency which the Supreme Court has made is based on Article 4 (2) of the Directive in conjunction with Article 3 and that it is not possible appreciate that the Supreme Court had gone beyond the scope defined by the directive itself. Secondly, it states that the contractual clause which has been declared abusive has never existed, so that the factual and legal situation in which the consumer would find himself in this situation must be restored, since otherwise it would be the deterrent effect sought by Article 6 of the abovementioned European standard.

III

As it is foreseeable that the recent pronouncement of the Court of Justice of the European Union will lead to an increase in the demands of the affected consumers by requesting the refund of the amounts paid in application of the In the light of the above, it is of extraordinary and urgent need to provide for a simple, orderly, consumer-friendly channel which would facilitate the possibility of reaching an agreement with the credit institution which would enable them to settle their differences by the refund of those quantities.

In this regard, it is important to note that the measure also seeks to prevent an increase in litigation that would have to be faced by civil jurisdiction, with a high cost to the Administration of Justice. for each process and an impact detrimental to its operation in the form of a substantial increase in the duration of the procedures.

This reform aims at minimum intervention and regulation, giving consumers an instrument to enable them to obtain a quick response to their complaints. In this line, a special and short-term forecast is preferable, in addition to the procedural, commercial and civil rules. According to the case-law of the Court of Justice, in the absence of European Union rules for the recognition of a right recognised by Union law, it corresponds to the internal legal system of each Member State, in accordance with the the principle of procedural autonomy, the designation of the competent bodies and the establishment of procedural rules for the resources intended to safeguard those rights. However, Member States are responsible for ensuring that these rights are effectively protected in each case. The decision of the authority is governed by national law on condition, however, that its provisions are not less favourable than those governing similar internal situations (principle of equivalence) and that they do not make it impossible to the practice or excessively difficult exercise of the rights conferred by the legal system of the Union (principle of effectiveness).

The measures that are adopted respect the requirements of these principles. From the point of view of the principle of equivalence, these are additional measures to those laid down in the legal order, in order to facilitate an agile and satisfactory solution for the consumer. From the point of view of the principle of effectiveness, the measures not only facilitate the restoration of consumer rights in practice, but also leave the consumer's right to obtain effective judicial protection of consumers. their right to national courts.

The inspiring principle of the mechanism being set in motion is the willingness to access an out-of-court settlement procedure prior to the interposition of the court order, at no additional cost to the court. the consumer and the need to attend to the credit institutions. Such a willingness to avoid a possible conflict with a demanding interpretation of the right of access to the jurisdiction of article 24 of the Spanish Constitution. However, it is anticipated that, during the time when the prior complaint is substantiated, the parties may not exercise against the other any judicial or extrajudicial action in relation to their object, in order to avoid practices of bad faith which only from a first moment pursue legal proceedings.

In order to determine whether the ground clause is included in the scope of this royal decree-law, they are considered as criteria to highlight, among others, those established in the aforementioned judgment of the Supreme Court. 241/2013: the creation of the appearance of a variable-interest loan contract in which the downward swings in the benchmark will have an impact on a decrease in the price of the money; the lack of sufficient information in question of a defining element of the main object of the contract; the creation of the appearance of the ground has as an uncleavable consideration the fixing of a roof; its eventual location between an overwhelming amount of data among those that are masked and that dilute the attention of the consumer; the absence of simulations of diverse scenarios, relating to the reasonably foreseeable behaviour of the interest rate at the time of the contract, at pre-contractual stage, and the absence of clear and comprehensible prior warning of the comparative cost with other products of the own entity.

In the judicial phase, measures are established with respect to the procedural costs that encourage the extra-judicial recognition of the consumer's right and the search by the credit institutions. In short, the measures adopted are aimed at ensuring that the consumer has restored his right within the shortest possible time, avoiding the need for a judicial process to be exhausted in time.

Additionally, the tax treatment of the amounts received is regulated by the return of the interest rate limitation clauses on loans derived from agreements concluded with financial institutions, to the end of which The rules of the Income Tax of the Physical Persons are amended.

IV

For all of this, in the whole and in each of the measures that are adopted, they are, by their nature, objective and by the context in which they are dictated, the circumstances of extraordinary and urgent need that Article 86 requires. of the Spanish Constitution as an enabling budget to use this type of standard.

In its virtue, in use of the authorization contained in article 86 of the Constitution, on the proposal of the Minister of Economy, Industry and Competitiveness and the Minister of Justice, and after deliberation of the Council of Ministers in its Meeting of the day of January 20, 2017,

DISPONGO:

Article 1. Object.

This royal decree-law aims to establish measures to facilitate the return of the amounts unduly paid by the consumer to credit institutions under certain clauses. land contained in loan or credit agreements secured with a real estate mortgage.

Article 2. Scope.

1. The measures provided for in this Royal Decree-Law shall apply to loan or credit agreements secured with a mortgage on property which include a land clause whose borrower is a consumer.

2. Consumer shall mean any natural person who meets the requirements laid down in Article 3 of the recast of the General Law for the Defence of Consumers and Users and other supplementary laws approved by Royal Decree Legislative 1/2007 of 16 November.

3. A ground clause shall mean any stipulation included in a loan or credit agreement secured with a variable rate real estate mortgage, or for the variable tranche of another type of loan, which limits the variability of the type of interest of the contract.

Article 3. Pre-claim.

1. Credit institutions must set up a system of complaints prior to the interposition of legal claims, which will be voluntary for the consumer and which will serve to address the requests made by them in the field of consumer protection. royal decree-law. Credit institutions shall ensure that such a claim system is known to all consumers who have included a floor clause in their home loan.

2. Where the claim is received, the credit institution shall carry out a calculation of the amount to be returned and send it a communication to the consumer, breaking down that calculation; in that breakdown the credit institution shall necessarily include the amounts which correspond to the concept of interest. Where the entity considers that the return is not appropriate, it shall communicate the reasons for its decision, in which case the extra-judicial procedure shall be terminated.

3. The consumer must state whether he agrees with the calculation. If it is, the credit institution shall agree with the consumer to return the cash.

4. The maximum period for the consumer and the entity to reach an agreement and the amount to be returned to be made available shall be three months from the filing of the claim. For the purpose of the consumer being able to take such measures as it deems appropriate, the out-of-court procedure shall be understood to have concluded without agreement:

a) If the credit institution expressly rejects the consumer's request.

b) If the three-month period is terminated without any communication from the credit institution to the claimant consumer.

c) If the consumer does not agree with the calculation of the amount to be returned by the credit institution or rejects the amount offered.

(d) If the amount offered has not been made available to the consumer by the end of the three-month period.

5. Credit institutions shall inform their clients that the agreed returns may generate tax obligations. They shall also communicate to the State Agency of the Tax Administration the information on the agreed returns.

6. The parties may not exercise any judicial or extra-judicial action in relation to the subject matter of the prior complaint during the time when the claim is substantiated. If demand is filed prior to the completion of the procedure and with the same object as the claim of this article, when it is noted, the suspension of the process will occur until the prior claim is resolved.

Article 4. Procedural costs.

1. Only if the consumer rejected the calculation of the amount to be returned or declined, for any reason, the return of the cash and subsequently file a court order in which he obtained a more favourable judgment than the offer received of that entity, the order shall be ordered to pay the costs.

2. If the consumer intervenes a claim against a credit institution without having taken the extra-judicial procedure under Article 3, the following rules shall apply:

(a) In the event of a break-in of the credit institution prior to the response to the claim, it shall be deemed not to be in bad procedural faith, for the purposes of Article 395.1, second paragraph, of Law 1/2000, of January, for Civil Procedure.

(b) In the case of partial break-in of the credit institution prior to the defence to the claim, provided that the amount to which the credit institution is paid is entered, it may only be ordered to pay the costs if the consumer obtains a judgment whose economic result was more favourable than the quantity entered.

3. As not provided for in this precept, the provisions of Law 1/2000 of 7 January of Civil Procedure shall be provided.

Additional disposition first. Arrangements for the adaptation of credit institutions.

1. Credit institutions shall take the necessary measures to comply with the provisions contained in this royal decree within one month and shall be obliged to articulate agile procedures enabling them to be promptly resolved. of the claims.

2. The entities must have a department or specialized department that has the object to attend to the complaints presented in the field of this royal decree-law, and must make available to its customers, in all the offices open to the public, as well as their web pages, the following information:

(a) The existence of the department or service, with the indication of its postal and electronic address, in charge of the resolution of complaints.

(b) The obligation on the part of the entity to address and resolve the claims submitted by its clients within three months of its filing in the relevant department or service.

c) References to the financial services client transparency and protection regulations.

d) The existence of this procedure, with a specific description of its content, and the possibility of using it for those customers who have the floor clauses referred to in this royal decree-law included in their contracts.

3. Consumers included in the scope of this royal decree-law will be able to file their claims since their entry into force. The three-month period provided for in Article 3.4 shall not start counting until the effective adoption of the measures necessary for its implementation, or a month has elapsed without the institution having set up the relevant department.

Additional provision second. Compensatory measures other than cash back.

1. For the purposes of Article 3, once the amount to be repaid has been agreed, the consumer and the credit institution may agree to adopt a compensatory measure other than the return of the cash. In this case, the credit institution must provide an assessment to enable it to know the effect of the compensatory measure and to grant it a period of 15 days to express its conformity.

2. Acceptance of a compensatory measure shall require that the consumer has received sufficient and adequate information on the amount to be returned, the compensatory measure and the economic value of that measure. The acceptance of the compensatory measure reported with this extension must be handwritten and in a separate document in which the time limit laid down in the previous paragraph is also recorded.

Additional provision third. Gratuitousness of the extra-judicial procedure and reduction of tariffs.

The out-of-court complaint procedure will be free of charge. The formalisation of the public deed and the registration registration which, if any, could be derived from the agreement between the financial institution and the consumer shall accrue exclusively to the relevant notarial and registration fees, in a respective manner, to a document with no amount and to a minimum registration, whichever is the basis.

Single transient arrangement. Court proceedings in progress.

In the judicial proceedings under way to the entry into force of this royal decree-law in which a claim included in its scope, exercised by one or more consumers in relation to a credit institution, the parties of the common agreement may be subject to the procedure laid down in Article 3, requesting the suspension of the process, in accordance with the provisions of Law 1/2000 of 7 January of Civil Procedure.

Single repeal provision. Regulatory repeal.

As many rules of equal or lower rank are repealed, they are opposed to the provisions of this royal decree-law.

Final disposition first. Amendment of Law 35/2006, of 28 November, of the Tax on the Income of the Physical Persons and of partial modification of the laws of the Taxes on Societies, on the Income of Non-Residents and on the Heritage.

With effect from the entry into force of this royal decree-law and previous non-prescribed exercises, a new additional 45th to the Law 35/2006, of 28 November, of the Income Tax of the Natural Persons and partial modification of the laws of the Taxes on Societies, on the Income of Non-Residents and on the Heritage, with the following wording:

" Additional layout 45th. Tax treatment of amounts received for the return of interest rate limitation clauses on loans arising from agreements concluded with financial institutions or the fulfilment of arbitral judgments or awards.

1. The return resulting from agreements concluded with financial institutions, in cash or through other compensation measures, together with their corresponding compensation interests, will not be integrated into the taxable base of this tax. amounts previously satisfied to those in the interest of the application of loan interest rate limitation clauses.

2. The amounts previously paid by the taxpayer referred to in paragraph 1 above shall have the following tax treatment:

(a) When such quantities, in previous years, have been part of the basis of the deduction for investment in habitual housing or deductions established by the Autonomous Community, the right to practise the (a) deduction in respect of the same, by adding to the state and regional liquid quota, payable in respect of the financial year in which the agreement was concluded with the financial institution, exclusively the amounts unduly deducted in the exercises in respect of which the right of the Administration has not been prescribed for to determine the tax liability through the timely liquidation, in accordance with Article 59 of the Financial Income Tax Regulation, approved by Royal Decree 439/2007 of 30 March, without the inclusion of interest for late payment.

The addition provided for in the preceding paragraph shall not apply with respect to the portion of the amounts directly allocated by the financial institution, following the agreement with the taxpayer concerned, to the principal of the principal of the loan.

(b) Where such amounts would have been considered to be deductible expense in previous years for which the right of the Administration to determine the tax liability would not have been prescribed by appropriate settlement, such consideration shall be forfeited, and additional self-validation shall be carried out for such exercises, without penalty, interest on late payment, or any surcharge within the period between the date of the agreement and the termination of the following deadline for the submission of self-validation by this Tax.

(c) Where such quantities have been satisfied by the taxpayer in respect of financial years for which the time limit for the submission of self-settlement for this tax would not have been completed prior to the repayment agreement of the same held with the financial institution, as well as the amounts referred to in the second subparagraph of the preceding subparagraph, shall not form part of the deduction basis for investment in habitual housing or for any autonomous deduction or have the consideration of deductible expense.

3. The provisions of the preceding paragraphs shall also apply where the return of quantities referred to in paragraph 1 above has been the result of the execution or enforcement of judgments or arbitral awards. '

Final disposition second. Competence title.

This royal decree-law is dictated by the provisions of Articles 149.1.6., 11. ª, 13. and 14. of the Constitution, which attribute to the State the powers of commercial law, procedural, basis of the ordination of the credit, banking and insurance, bases and coordination of general economic activity planning, and general government and government debt, respectively.

Final disposition third. Regulatory enablement.

The government is empowered to dictate how many provisions are necessary for the development of this rule. In particular, it may be regulated:

(a) The existence of a monitoring, control and evaluation body for the complaints made in the field of application of this royal decree and its legal regime. This body, which will have to issue a six-monthly report on its action, will have the participation of representatives of consumers and lawyers. This monitoring body will collect from the credit institutions the necessary information to verify that the prior notice provided for in this royal decree-law has been made, especially to vulnerable persons. This monitoring body will be able to propose the necessary measures to promote the correct implementation of the extra-judicial mechanism provided for in this royal decree.

b) The extension of the scope to other consumers related to the borrower of loan or credit agreements secured with real estate mortgage.

Final disposition fourth. Entry into force.

This royal decree-law will enter into force on the day of its publication in the "Official State Gazette".

Given in Madrid, on January 20, 2017.

FELIPE R.

The President of the Government,

MARIANO RAJOY BREY