The statute of limitations, restitution action and consumer protection

Abstract

This paper aims to reflect on the current articulation of the statute of limitations, specifically regarding the restitution action of a declared null clause. This analysis is motivated by the reading of the Judgments of the Court of Justice of the European Union of January 25, 2024, and April 25, 2024, which resolve three preliminary questions raised by Spain regarding the commencement of the limitation period provided for in the Civil Code and the Catalan Civil Code, considering the diversity of criteria in our Provincial Courts. The Court of Justice requires, for determining the commencement of these actions' limitation period, the knowability of the facts and their legal assessment and proposes as the starting date of the computation, the final declaration of the judgment declaring the nullity of the clause. This proposal has been accepted by the Supreme Court in its Judgment of June 14, 2024.Nevertheless, these judicial pronouncements compel us to consider other aspects, such as the role assigned by Directive 93/13/EEC to banking entities, how the consumer's knowability should be assessed, and the adequacy of the proposed criterion to our legal system.