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Publicado el 10/7/2015

(Judgment of the Supreme Court Chamber 1, Plenum of 04.22.2015)
The Plenum of the TS, fixed jurisprudential doctrine considers abusive default interest clause, under personal loan contract concluded with a consumer, when exceeded by more than two percentage points the interest agreed remunerative.
In brief summary, analyzes this important judgment that:
1. The effectiveness of the contract with "general conditions" as well as the provision of consent to the inclusion of adherent clear, understandable and transparent clauses in their economic and legal consequences, demands respect, in accordance with the requirements of good faith, the right balance between the rights and obligations of the parties, which in any case excludes introduce "unfair terms".
2. Such Community law attaches importance to the control of abusiveness of clauses not negotiated in consumer contracts in Article 6.1 of Directive 1993/13 / EEC, is mandatory. It is a principle of general interest of Union law getting a free market situations contractual imbalance to the detriment of consumers.
3. A clause in a consumer contract shall be considered "non-negotiated" and therefore is applicable Directive 1993/13 / EC and national implementing regulations in particular (the Revised Text of the General Law for the Defense Consumers and Users) if it is biased and imposed, in the sense that joining the contract is attributable to professional or entrepreneur.
4. The professional or business (well, in banking services) asserting that a particular clause has been negotiated individually, assume the burden of proof of that negotiation.
5. The clause establishes the default interest is subject to abusiveness control, not only in terms of transparency, but also on whether the detriment of consumers, cause a significant imbalance in the rights and obligations of the parties under the contract. So be abusive when there is a disproportion between the compensation for breach of consumer and asset impairment actually caused the professional or entrepreneur.
Are abusive clauses involving the imposition of a disproportionately high compensation to the consumer and user who does not fulfill its obligations.
After a thorough examination of the proportionality, the Supreme Court considers that the increase of two percentage points referred to in art. 576 of the Code of Civil Procedure for fixing the interest arrears procedure is the most appropriate legal criteria and provided to set what the default interest in the concerted personal loans to consumers, if the consumer does not fulfill its obligations. This is the expected criteria for default interest to be accrued by the judicially declared and for which payment has sentenced the defendant debt. It has a general scope, not restricted to a particular field of substantive law prevents interest for late payment may be less than remunerative indemnifies in a way provided the damages suffered by the plaintiff who has won the litigation delayed convicted in compliance with the obligation judicially declared, and also contains a deterrent to the offender not delay in excess enforcement of the judgment.

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