Below follow some issues that arise from the application of the measures provided in the above-mentioned piece of legislation that are related to its scope of application and the out-of-court procedure therein contained.

1. Although may seem obvious, it seems to me that the breadth of the scope of application of the measures provided in the Royal Decree-Act, pursuant to art. 2(1) thereof, makes it necessary to bear in mind that this law cannot overstep res judicata and, therefore, does not apply to those cases where a final and conclusive judgment has limited the retroactivity of refunds.

In such cases, which I will not analyse here, the characterisation of the amounts as “undue” and, therefore, the basis to reclaim them through the out-of-court procedure provided for in the in the Royal Decree-Act, would require a review of final and conclusive judgments. And this would not be possible under the aegis of the judgment of the Court of Justice of the European Union (CJEU) of December 2016. Indeed, Judgment no. 81/2016 of the Supreme Court of 18 February (RJ 2016/567) does not uphold the claim for review of a final and conclusive judgment given by the Supreme Court itself on the basis of a subsequent judgment of the CJEU that settled the disputed issue in a different manner (where the Supreme Court would had reached a different determination had it waited for the latter judgment). The judgment recalls that the CJEU has accepted the possibility of reviewing an administrative act following a subsequent judgment of the European court, but not the possibility of reviewing a final and conclusive judgment: “EU law does not require a review of final and conclusive judgments where such a possibility is not provided for in domestic procedural rules” (see, for example, the Judgment of the CJEU of 16 March 2006, Case C-234/04 Kapferer). And in our legal system there is no legal provision regarding such possibility of review, unlike what happens when a judgment of the European Court of Human Rights is concerned (see art. 510(2) of the Civil Procedure Act [LEC]). 

2. If it is a question, as stated in art. 1 of the Royal Decree-Act, of facilitating the refund of amounts “unduly paid” by the consumer, what is deemed as such must be specified. And the amounts will be deemed “unduly paid” not when the consumer so deems it, but when the clause is void, which requires the appropriate adjudication. The foregoing will certainly limit the scope of the measures provided in the Royal Decree-Act:

(a) If a consumer has already filed the legal claim and a final and conclusive judgment has not been given yet, normally the proceedings would continue, although the parties may apply for a stay thereof of mutual agreement (single transitory provision of the Royal Decree-Act).

(b) If a consumer has not judicialised his situation (and is not affected by judgments given in other cases) and files the previous complaint provided in art. 3, normally the institution will discuss it (it will do so except for clear cases of likeness to clauses already held void) and the out-of-court path is brought to an end (art. 3(2)).

3. The objective of the Royal Decree-Act is to regulate – with the incentive provided by the rules on costs – “a simple and orderly avenue, voluntary for the consumer, that facilitates reaching an agreement with the credit institution that allows them to settle their differences through the restitution of these amounts”, thus averting the risk of overwhelming the courts. “The principle inspiring the mechanism that is set in motion - states Preamble III - is the willingness of agreeing to an out-of-court settlement procedure prior to filing a lawsuit, at no additional cost for the consumer and which must be heeded by credit institutions”. But in reality this is not so:

(a) The consumer’s out-of-court complaint allows the institution to choose between making a calculation of the amount to be refunded and sending a breakdown to the consumer, or to conclude that the refund is not appropriate and communicate the reasons for such conclusion, in which case, as I have just said, the out-of-court procedure will come to an end (art. 3(2)). Therefore, this procedure is voluntary for the consumer, as the legislator says, but also for the credit institution.

(b) On the other hand, from this voluntariness stems the fact that the “out-of-court settlement procedure” is not imposed prior to court proceedings, by way of conciliation or prior administrative complaint of a mandatory nature, but is offered to the consumer as an alternative to the judicial path that the institution may or may not accept.

4. If the institution believes that refund is not appropriate, the judicial path is expedited for the consumer, without providing what impact the out-of-court route that was defeated will have on the same. If, on the other hand, the institution makes a calculation of the amount to be refunded and communicates it to the consumer, there are two possibilities open to the latter:

(a) The first is to state that he does not agree with the calculation made by the credit institution (that is, he disputes it) or that he rejects the amount offered. In both cases, the possibility of negotiating the amount during the maximum time limit of three months, “in order for the consumer and the institution to reach an agreement and have the refundable amount made available to the former” (art. 3(4), beginning), is not provided for; quite the contrary, “the out-of-court procedure shall be deemed concluded without agreement” (art. 3(4)(c)). The provision states that “[for] the purposes of the consumer being able take the measures he deems appropriate”, but, if the prior complaint procedure is deemed concluded, these measures will be specifically to go to court; although, in the abstract, the possibility of initiating a new out-of-court procedure or of opening an alternative channel of negotiation that could lead to a different type of agreement cannot be ruled out.

(b) The second possibility open to him is to express his agreement, in which case the agreement will have been reached. In this case, “the credit institution will agree with the consumer to refund the monies” (art. 3(3)).

It should be noted that the latter case leads to an agreement, similar to that achieved in a conciliation hearing resulting in a compromise, with one of two possible contents: the refund of the amount offered and accepted (whose terms, calendar and method will be regulated) or, alternatively, the adoption of different compensatory measures, without the Royal Decree-Act actually referring to what they may be, limiting itself in the second additional provision to the adoption of a series of consumer safeguards concerning, in particular, the “sufficient and adequate” information that the credit institution must provide “on the amount to be refunded, the compensatory measure and the financial value of such measure”.

Note that the Royal Decree-Act provides nothing specific on the enforceability of this agreement. In art. 3(4)(d) the legislature simply states that “(for) the purposes of the consumer being able take the measures he deems appropriate, the out-of-court procedure shall be deemed concluded without agreement” if, after the time limit of three months the amount offered has not been made available to the consumer in an effective manner.

Certainly, in the absence of intervention by a court of law, direct enforceability could not be recognised to the agreement reached between the consumer and the credit institution; but will it have such enforceability if executed in a deed? In my opinion, there is no obstacle to recognising such enforceability it the deed complies with the provisions of art. 517(1)(4) LEC.

5. Art. 3(6) states that the parties may not assert against each other any court or out-of-court action in relation to the subject matter of the prior complaint during the time in which determination is being reached. If a claim is filed prior to the end of the procedure and with the same subject matter as the complaint, it is provided that, as soon as this is known, “the proceedings shall be stayed until the prior complaint is determined”.

The desired effect – the staying of proceedings – is clearly expressed, but procedural treatment is not provided for. The wording of the provision (“the proceedings shall be stayed...”) is mandatory, but I am of the understanding that the same (the stay) cannot be ordered sua sponte. Given the voluntary nature of the out-of-court procedure for both parties, if one of them decides to go to court, his intention to withdraw from the former must be presumed; an intention that must also be deemed with respect to the opposing party if it decides not to raise in the court proceedings the appropriate defence or, better, notice. The rule provides for the possibility of giving notice at any time (“as soon as known”), being determined in the act, without having to wait for the legally provided stages (pre-trial review, for example). However, having given notice in court proceedings of a pending out-of-court procedure, I believe that the opposing party must be heard and if it expresses its intention of not reaching an agreement, the court proceedings should proceed.

For this reason, I think the regime provided in the single transitional provision for ongoing court proceedings is more appropriate; according to which, if the parties agree to submit to the out-of-court procedure contained in the Royal Decree-Act, they may apply for a stay of the court proceedings.

6. And, lastly, a remark concerning the rules on costs in court proceedings in the event of the out-of-court procedure failing. No doubt the legislature laid down these rules thinking of them as an incentive of these out-of-court procedures, especially for the credit institution. Therefore, if the institution makes an offer, stating its willingness to reach an agreement, and the consumer rejects it, the institution will only be ordered to pay costs in the judicial path if the consumer is awarded more than what he was offered and he rejected (art. 4(1)). In other words, the credit institution is told what follows: make a correct calculation, so that it cannot be rejected, and you will not be ordered to pay costs. Therefore, the possibility of the institution offering a compromise is limited.