Reference for a preliminary ruling from the Juzgado Mercantil de Barcelona (Spain) lodged on 8 August 2011 - Mohamed Aziz v Caixa d'Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa)

(Case C-415/11)

Language of the case: Spanish

Referring court

Juzgado Mercantil de Barcelona

Parties to the main proceedings

Applicant: Mohamed Aziz

Defendant: Caixa d'Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa)

Questions referred

Whether the system of levying execution, in reliance on judicial documents, on mortgaged or pledged property provided for in Article 695 et seq of the Ley de Enjuiciamiento Civil (Code of Civil Procedure), with its limitations regarding the grounds of objection available under Spanish procedural law, may be nothing more than a clear limitation of consumer protection since it involves, both formally and substantively, a clear impediment to the consumer's exercise of rights of action or judicial remedies of such a kind as to guarantee the effective protection of his rights.

This reference to the Court of Justice of the European Union is made so that the concept of disproportion can be expanded upon with regard to:

(a) the use of acceleration clauses in contracts planned to last for a considerable time - in this case 33 years - for events of default occurring within a very limited specific period;

(b) the setting of default interest rates - in this case exceeding 18% - which are not consistent with the criteria for determining default interest in other consumer contracts (consumer credit), which, in other types of consumer contracts, might be regarded as unfair, and which, nevertheless, in contracts relating to immovable property, are not subject to any clear legal limit, even where they are applied not only to the instalments that have already fallen due but also to the totality of those that have become due as a result of acceleration;

(c) the unilateral establishment by the lender of mechanisms for the calculation and determination of variable interest - both ordinary and default interest - which are linked to the possibility of mortgage enforcement and do not allow a debtor who is subject to enforcement to object to the quantification of the debt in the enforcement proceedings themselves but require him to resort to declaratory proceedings in which a final decision will not be given before enforcement has been completed or, at least, the debtor will have lost the property mortgaged or charged by way of guarantee - a matter of great importance when the loan is sought for the purchase of a dwelling and enforcement gives rise to eviction from the property.

____________