Supreme Court ruling on floor clauses

In this article we are going to study what the floor clauses consist of and the most important aspects of the famous ruling of the Supreme Court of May 9, 2013.
What is the floor clause
The commonly called “floor clause” consists of a minimum percentage of interest that must be paid on a loan, regardless of whether the interest to be paid that would correspond if said clause did not exist were lower. It has been very relevant in mortgage contracts, in which the variable interest rate referenced to the Euribor was mostly fixed.
Thus, it could be said that the floor clauses convert a loan with a variable interest rate into one with a fixed minimum interest rate, which must always be paid even if the interest rate is below.
Supreme Court ruling of May 9, 2013
Specifically, we are going to focus on how the Supreme Court has legally treated the legality of the floor clauses. The first statement to highlight is the one that occurs in the extensive ruling of May 9, 2013, in which we are told that the floor clause is part of the essential elements of the contract. For this reason, the ruling emphasizes the importance of there having been transparency in the introduction of the clause in the contract, since if there was not, the clause would be null. In fact, the Supreme Court goes so far as to say – in the case that the ruling is being studied – that although the requirements established by law for the general conditions of the contract are met, the client did not realize the importance of the clause when the contract was established. variable interest mortgage contract.
Conclusions of the sentence
The Supreme Court ends by saying that floor clauses are not transparent for a series of reasons. But these must be taken into account as an example, since in a order of the Supreme Court of June 3, 2013, in which the commented sentence clarifies, it is said that the reasons given in the sentence must be considered as parameters. We must emphasize that not all floor clauses are void, but that it would be necessary to study case by case whether there is a real lack of transparency. Furthermore, in the scenario analyzed we find that one of the contracting parties is a consumer, so the solution could differ if it were a professional.Retroactivity or non-retroactivity of the floor clause?
It is very important to determine whether the ruling is applied retroactively or not, since this circumstance determines whether the bank has to return everything improperly collected before the ruling was issued. In this case, the Supreme Court has expressly said in the ruling of May 9, 2013 that the nullity of the clauses does not affect final resolutions or payments prior to the publication of the ruling. This means that the ruling does not have retroactive effect and, therefore, does not affect payments made prior to the ruling.
The problem that arose after the ruling was that some courts did declare the retroactivity of the sentence, the banks having to return all the money they have been collecting improperly.
We will analyze this issue along with other issues of floor clauses in subsequent articles.
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