On 24 January, the Ninth Chamber of the Court of Justice of the European Union (CJEU) notified the Judgment resolving a series of preliminary rulings raised by the 15th Section of the Provincial Court of Barcelona (joined cases C-810/2021 to 813/2021), all of them relating to the statute of limitations of the restitutory action associated with the declaration of nullity of unfair terms.
In this context, and given that it was one of the most eagerly awaited judgments in recent times on this matter, the director of the Legal Advice area of Tecnotramit, David Viladecans Jiménez, makes an analysis and assessment of this new resolution of the CJEU:
- “The truth is that it has been a bit disappointing, given that, with the utmost respect, it has not resolved many of the issues that were raised and has left many doors open.”
- “We must encourage legal operators to demand a little more from the CJEU in its judgments, which lately are leaving many questions unresolved and, those that are resolved, suffer from a lack of clarity incompatible with the main function of preliminary rulings: to clarify the application of European Union law.”
- “The Judgment of the CJEU has left many questions open that will necessarily have to be made up for with the daily work of our courts, which little by little must understand that the Judgments of the CJEU are not a kind of divine revealed book that must guide all their actions, but that they are Judgments to be taken into account but that they also suffer from absences that, In addition to being open to criticism, they require free application by national judges.”
- “Determining whether or not knowledge has occurred is a matter of evidentiary assessment. And I make these statements because the CJEU has made a statement that may clash with this principle by pointing out that the existence of consolidated jurisprudence does not imply the knowledge of the consumer. Knowledge occurs in the internal jurisdiction of the consumer, so that direct proof is impossible, and indirect evidence must be used to infer that the consumer was aware of his rights.”
- “Once again, the CJEU has turned a deaf ear and has concluded that consolidated jurisprudence is not sufficient to understand the existence of knowledge as proven. In particular, I believe that the CJEU has gone too far and too far. I believe that the assessment of evidence should be the exclusive responsibility of the national courts, which will take into account all the factors involved in each case. And if the court considers that a situation does not allow a fact to be considered proven, perhaps it would have been advisable for it to have given guidelines for the assessment of the evidence to know when knowledge is accredited – or guidelines are given or they are not given – especially since it had been expressly asked about it”.