Nullity due to abuse of the mortgage loan expenses clause: integration of the contract in accordance with supplementary national law, prescription of the restitution action and procedural costs (Regarding the SCJEU of July 16, 2020)

Abstract

Again the CJEU has ruled in relation to Spanish law and abusive clauses. In this case it has been the mortgage expense clause. This work will analyze the doctrine developed by the CJEU in its judgment of July 16, 2020, which endorses the doctrine of the Supreme Court allowing the integration of the contract with national supplementary law. This doctrine will be critically commented on along with the different criteria set by the Supreme Court on the distribution of mortgage expenses among the parties and that has caused so much controversy and controversy in recent years. Along with this, the issues also addressed by the CJEU about the limitation period of the action for restitution of amounts unduly paid as a result of the declaration as abusive and null of a contractual clause, and on the imposition of costs to the lender as a mechanism to avoid dissuading the consumer from defending their rights, but nonetheless to also dissuade the lender from the use of abusive clauses.