The TC paves the way for the refund of municipal capital gains tax
The Supreme Court (SC) has issued a ruling that paves the way for the return of the municipal capital gains tax to those who appealed before October 26, 2021 -date of the Constitutional Court ruling declaring this tax unconstitutional- but who only challenged the non-existence of the alleged increase in value in the transfer without alluding to the possible unconstitutionality of the method of calculating the tax base, according to Confilegal.
In it, the court of the Contentious-Administrative Chamber (Second Section) has upheld the appeal of a taxpayer who claimed from the City Council of Lérida the refund of the Tax on the Increase in Value of Urban Land (IIVTNU) known as municipal surplus value, and who did not challenge its unconstitutionality, but denied that there had been an increase in value.
The SC has ruled that this liquidation "is invalid and ineffective due to the unconstitutionality of the legal rules covering it".
The judgment, handed down on July 27 (1103/2022), was signed by Judges José Antonio Montero Fernández (president), Francisco José Navarro Sanchís, Dimitry Berberoff Ayuda, Isaac Merino Jara and Rafael Toledano Cantero, who acted as rapporteur,
In this case, an amount of 610,027.29 euros was settled for the sale of real estate and premises for 6,010,121.04 euros.
Specifically, the individual, who has been assisted by the lawyer Silvia Aylón Pla, appealed before the SC a judgment of the Superior Court of Justice of Catalonia (TSJCat) that in February 2019 upheld an appeal against another previous judgment that upheld his contentious-administrative appeal against a resolution of the Consitory that had dismissed the appeal for reconsideration that he promoted against the agreement of declaration of subsidiary liability.
Therefore, it revokes the appealed judgment, confirming the judgment issued by the Court of Lérida.
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The Supreme Court rules on disinheritance
The Supreme Court rejects that the lack of relationship is sufficient reason to disinherit a child or grandchild if it cannot be proved that this estrangement has been continuous over time, attributable to the heir and has caused psychological damage to the testator. This is what the high court has established in a ruling in which it upholds a group of granddaughters who appealed against the will of their paternal grandmother, who disinherited them for breaking off all relations with her after the separation of their parents.
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In fact, the woman made a will just five months after the death of one of her children, the plaintiffs' father, including a clause in which she disinherited her two granddaughters "for having mistreated her in deed", denying them the legitimate share of the legacy that corresponded to them in their father's absence. But, perhaps aware that the decision could be reversed, he left in writing that if the disinheritance was not finally made effective, he would bequeath them only what was strictly entitled to them.
The will was contested by the granddaughters, who denied that the lack of relationship with the grandmother could be considered psychological abuse, one of the few causes of disinheritance provided for in the Civil Code, and who stressed that their father, with whom they did not speak either, did not disinherit them. This argument was countered by their uncles and aunts, who argued that their brother died suddenly of a stroke, so he died intestate, and that his daughters did not attend the hospital or the funeral.
Despite these arguments, the granddaughters won all the trials that were held, first in a court in Aranda de Duero and then in the Provincial Court of Burgos. In the latter instance, the magistrates acknowledged that the change in the grandmother's will could have been motivated "by the last lack of affection of the plaintiffs for their father", by not visiting him in hospital. However, they recalled that behind this episode there was a previous history of disagreements and that the grandmother herself, after the separation of the girls' parents, judicially evicted them and their mother from the house in which they were living, located in a campsite belonging to the paternal family.
The Supreme Court, in its ruling, recalls that the grounds for denying a relative's legitimate share are very specific by law, and that if they are appealed, it is up to the rest of the heirs to prove their veracity, as the burden of proof is shifted.
The High Court acknowledges that in other cases it has admitted the lack of a continuous relationship attributable to the heir as psychological mistreatment and, therefore, as a justified reason for disinheritance. But it makes it clear that "not every lack of affective relationship or family treatment can be included, by way of interpretation, in the grounds for disinheritance".
The contrary, he says, would be tantamount to leaving it in the hands of the testator to deny the legitimate share to any direct relative with whom he has lost the relationship, regardless of the causes and the consequences that this situation has on his health.
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Insurance company convicted of closing a shop in the pandemic
A court in Siero has handed down the first ruling in Asturias forcing an insurer to compensate one of its clients for the loss of income resulting from the forced closure of a commercial establishment during the forced confinement of 2020, according to Ser Asturias.
The judge understands that the insurance company should have warned in advance that the policy excluded possible damages arising from a circumstance such as the state of alarm, and ordered it to compensate the business with 40,500 euros.
The payment for loss of profits must be paid by Banco Sabadell's insurer to an establishment located in the restaurant area of the Parque Principado shopping centre. It was one of many businesses affected by the forced closure dictated by the Spanish government under the state of alarm decreed in March 2020, following the declaration of the health emergency by COVID.
The usual conditions in this type of policy usually expressly cover losses resulting from a fire or flood, but the novelty is that this time the judge understands that the insurance company should have included a clause excluding such an event.
The jurisprudence seems to be on the claimant's side, but the way of appeal for the insurer is open and the criterion of the Provincial Court of Oviedo is still unknown. Only the Court of Girona has so far ruled in favour of the claimant in a similar case. Not all insurers have appealed against unfavourable rulings along these lines and therefore it can be said that, albeit cautiously, the door is open to the claims of thousands of small businessmen and self-employed people who have found themselves in the same situation.
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Euriux Lawyers at Spain Legal Expo Fair
Euriux Abogados, the national legal advice network with more than 25 years of service, has today completed the first of two days of the Spain Legal Expo fair at Ifema.
With a stand that shows in images the functioning of the collaborative legal advice network in Spain, Euriux has been visited by the firm's lawyers and clients.
The president of the General Council of Lawyers, Victoria Ortega, spoke with the heads of Euriux during her visit. An institutional representation of the Ministry of Justice of the Community of Madrid was also present.
The board of directors of Euriux Abogados headed by its president José Pedro Gómez Cobo as well as the vice-president José Maria García-Luján, the secretary Luis Burgos together with the members Ignacio Echevarrieta and Raquel San Sebastian, were also present at this inaugural event.
The head of the Madrid office, Míriam García, was also present, as was the associate for the province of Alicante, Francisco Picó.
In the afternoon, the president José Pedro Gómez Cobo gave a conference in which he explained the values of Euriux Abogados.
"Euriux Abogados maintains the spirit of the firm of trust, of closeness to the client, of a life-long relationship".
José Pedro Gómez Cobo, is the chairman of Euriux Lawyers. He is now in his fourth term at the head of a firm that brings together approximately 300 lawyers in 52 offices in Spain and Portugal, with more than 25 years of experience in legal services. This graduate in Law from the University of Zaragoza (1987), in addition to having been Dean of the Bar Association in Soria (2002-2011) and associate professor of Procedural and Community Law at the University of Valladolid (Campus Duque de Soria), is partner-director of Gómez-Cobo & Asociados in Soria.
Today he gives us his point of view on Euriux Abogados, the new challenges that lie ahead in the medium term and reviews how the world of the judiciary has evolved. This week, the firm he presides will be attending the Spain Legal Expo on 15 and 16 June at the Ifema exhibition centre.
What is Euriux Abogados?
Euriux Abogados is a law firm that was set up 25 years ago. The initial idea came from the founder, Manuel Bibián, a lawyer from Zaragoza based in Madrid and closely linked to the world of insurance companies. He began to put collaborative lawyering into practice. Seeing what insurance companies needed and still need, such as a network of law firms, Bibián and a group of lawyers thought of having this network. In this way, clients could be offered a network so that they did not have to go looking for a lawyer province by province. This was intended for a consumer profile of insurance companies, but the idea was developed and extended to other types of clients. Over the years, this has been reaching the smaller client, in SMEs and the self-employed, as well as private individuals. The idea was to create a network of law firms covering the entire national territory and part of it outside Spain. And so it has been consolidated.
25 years have already passed since the launch of collaborative law...
"We are a legal network, a network of law firms that are interconnected in such a way that we practice collaborative law. Both for the large client and for the smaller client".
The initial group did very well. They were recruiting, contacting law firms in the provinces of Spain that met certain characteristics. They were looking for a common profile: established law firms in the market, with a professional name, as well as experience in that client profile: insurance and civil liability. Later, we have been extending it to other legal disciplines. The truth is that the network has been expanding. Legally, it was constituted as an Economic Interest Grouping, one of the legal figures that was considered - at that time I was already there - to be the most suitable for what Euriux Abogados was, with its pros and cons. It is very much in line with what we are. It was not about creating a law firm different from everything else. It wasn't about creating a commercial company that was alien in form. In the end we are a legal network, a network of offices that are interconnected in such a way that we practice collaborative law. We address both the large client and the smaller client in a certain place who may need a lawyer in a different province. Euriux Abogados offers the possibility for law firms with similar characteristics to the local client to provide them with a lawyer with similar characteristics and with the same level of trust. This does not affect the cost of initiating legal proceedings in another location, simply because of the distance.
Euriux Abogados now has 52 offices and all regulated by the same firm.
The exact number of lawyers is based on the total volume of lawyers who may be providing their services in all the offices. We have larger and smaller offices, depending on the province. What we try to do is to maintain the spirit of an office with fifteen people or two, the spirit of a trusted office, close to the client, the one that has always existed. And in this number of offices we have the figure of the partner, the associate and the collaborating offices. We cover a fairly large network, something that is not easy for other firms to achieve. Euriux Abogados maintains the idea of the large client. Our structure is simple, a main office in Madrid, very well located and easily accessible for our partners, for clients. We have Miriam García, the head of the office. It allows us to have a centralisation for example in the computer system, in the use of new technologies and centralisation of invoicing. Through this structure, the firm shows that we are very efficient.
"It seems that what matters most is not the specific problem or the person, but the number. It is not so much the quality as the quantity and this has been transferred to public opinion. I think this has diminished the good name of the legal profession.
What do you expect from the Spain Legal Expo that Euriux Abogados is attending?
We are all a bit expectant. After having attended many legal congresses, this is going to be our first time at a Legal Fair. We are all expectant. From what we have seen, many sectors of the legal world are going to come together: publishers, institutional lawyers, other professionals linked to the legal profession. When we saw that it was going to be held in 2020 and it couldn't be for obvious reasons, we understood that it was of interest. We decided to participate. Euriux Abogados is a firm with a nationwide presence that should be present due to its novelty. We will see how it turns out and which companies and entities may be interested. I don't really like the word "legal market" in Spain, but modestly, we are not a big firm like others that pretend to be better known. That is not our philosophy. The idea is collaborative lawyering. And we will evaluate the result when the time comes.
"We don't try to create a product here to handle thousands and thousands of cases, but we keep the essence of a close office, in collaboration with other offices".
How do you feel about the state of the legal sector today?
This question could go on for a long time. I have been practising law for 34 years now and I have seen many things. The world of justice has evolved for the better in some respects and for the worse in others. It is true that there has been an enormous change in the means used to develop the activity with the appearance of new technologies. When I started out, when I was an intern, other means were used, such as the Administration of Justice itself; everything was more archaic and traditional. I'm not saying it was better, but it wasn't worse either. It is true that the new technologies have probably been implemented more slowly, which is difficult because we lawyers tend to move within the traditional parameters, very jealous of the management of our work, the treatment of the client, the proximity, the direct and personal treatment. Telematic and electronic systems have been implemented in Justice that other administrations had already been applying for some time. Everything has been slower, probably due to the very nature of our activity, which requires this proximity in procedures or the principle of immediacy. In this respect, it is true that we have seen a lot of progress. New lawyers are now highly trained, very familiar with the use of new technologies. It would be unthinkable to have an office without a computer or internet connection. There has been a great deal of evolution in the databases of jurisprudence, in bibliographic legislation through telematic video libraries. The bar associations have also collaborated a great deal in this, facilitating and reducing the cost of access to these tools, which at the beginning were quite expensive.
The lawyer should always be that person who welcomes you, listens to you, takes your notes, gives you legal advice, accompanies you, assists you and defends you in legal proceedings".
The new technologies have led to a distance, a disaffection sometimes with the different actors, the so-called legal operators. Sometimes, there is dehumanisation in the relationship between lawyers and clients. Perhaps a cooling off, a remoteness or a commoditisation. At Euriux, we have seen the emergence of certain highly publicised cases, not because of the case itself or because of the people who may have been involved, but because of these well-known mass cases, which affect a huge number of people: banking issues, for example, which are well known to everyone. And this has generated new figures in the world of law that have led to commercialisation. It seems that what matters most is not the specific problem or the person, but the number. Not so much quality but quantity, and this has been transferred to public opinion. I believe that this situation has diminished the good name of the legal profession. We are not trying to create a product here to handle thousands and thousands of cases, but we are keeping the essence of the law firm close to us, in collaboration with other law firms close to us and in turn with others. That is the idea we maintain. We do not want a law firm to be a call centre, I say this with all due respect, I am not criticising the service, sometimes it will be good, regular or bad like any other. The lawyer should always be that person who welcomes you, listens to you, takes your notes, gives legal advice, accompanies you, assists and defends you in legal proceedings. That is my current vision. And like everything in life, it has its good and bad sides.
Read MoreEuriux Abogados maintains the idea of the large client. Our structure is simple, a main office in Madrid, very well located and easily accessible for our colleagues, for clients".
How to claim the floor clause?
The Court of Justice of the European Union (CJEU) upheld on 17 May that consumers affected by unfair floor clauses could claim a full refund of the amounts they paid in excess, even if, at the time, only a part was returned, as pointed out by the Spanish Supreme Court.
How to start the process?
To start the process, you must have the legal status of a consumer.
Secondly, there must have been a lack of transparency in the application of the floor, which makes the clause abusive. One of these cases must be involved:
- That the minimum interest was included without informing the customer of its effect.
- That the clause was not in the binding offer but in the final contract.
- That there was a disproportionate difference between the mortgage floor and the mortgage ceiling.
All those affected by the floor clauses that meet these requirements can demand their elimination, including those who bought their home by subrogating to the mortgage with the developer's floor.
Euriux advises you
Are you one of those affected by the Floor Clause? Euriux Abogados is your solution and we will help you to recover the money you have paid too much.
The Floor Clause is a clause included in many mortgage contracts that establishes a minimum interest to be paid in the monthly mortgage repayments, regardless of the interest rate set by the market. The CJEU (Fourth Chamber) has issued a new and very interesting ruling dated 7 April 2022, in case C-385/20, which opens the way for consumers to claim all the amounts paid in excess due to abusive clauses, including the amounts paid in excess due to floor clauses, without restriction in time, even in the case of mortgages already paid or those that have already been executed, even when the financial institution has sold the property.
With this ruling, the CJEU gives us the option of demanding the restitution of the amounts unduly charged for the floor clauses prior to the date of the Supreme Court's ruling, which limited the retroactive effects of claiming the amounts to 9 May 2013.
The ruling states that national courts may examine of their own motion whether there has been an infringement and order full restitution of the amounts unduly paid for such unfair terms in a loan of this type.
In order to recover the money invested, professional advice is essential, as banks are not obliged to return the money. The calculation of the amount to be repaid is complex as the claim filed includes:
- The nullity of the Floor Clause.
- Calculation and refund of amounts overpaid since signing.
Recalculation of the amortisation table and restatement of amounts outstanding since signature
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What is the floor clause?
The floor clause does not appear by that name in the loan contract (it is recalled that it was applied to variable mortgages) for the purchase of a home or property. In the section on "interest" or "interest rates", or in the breakdown of the financial conditions, it is included under other headings: "Limits to the application of variable interest", "Limit to variability", "Variable interest rate", "Minimum interest rate", "Limitation to the interest rate", "tunnel", "minimum charge" or similar.
Another way to find out is by calculating the interest rate applied by the bank. If it exceeds the value of the Euribor plus the differential, which must be stated in the contract, it means that a floor clause has been applied to the mortgage.
How to claim floor clauses?
There are two ways to claim floor clauses: out of court and in court. Starting with the first, a formal complaint must be made to the bank that applied the floor clause. The bank has a period of up to three months to accept the claim and proceed to refund the money, although it can also offer an alternative such as reducing the outstanding capital of the mortgage or investing the money returned in savings products.
If the bank does not accept or does not reach an agreement, you have to go to court. The bank should be reported to the specialised court in the province of residence or to an ordinary court if the mortgage was applied for as a legal entity. A lawsuit can be filed by hiring a lawyer.
How long have floor clauses existed?
We have to go back to the 'brick boom'. During its outbreak, around 2007, the crisis officially began in Spain. To safeguard themselves, banks introduced floor clauses in mortgages to limit the fall in interest rates in variable-rate mortgage contracts. In this way, no matter how much the Euribor fell, they could ensure that they would continue to charge a profitable interest rate.
According to the Supreme Court, before 2004, 30% of mortgages already had a mortgage floor. However, it was in 2009, in the midst of the crisis, when they were applied to the maximum. Despite the sharp drop in the Euribor, thousands of people did not see any reduction in their monthly mortgage repayments as they should have, so a judicial process of judgments and claims began and continues today.
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European justice forces banks to pay back money for Floor Clauses
The European Court of Justice upholds the full refund of floor clauses to those affected by the change in the Supreme Court's criteria. A new victory for consumers in Europe, who will be able to demand the reimbursement of all amounts paid in excess due to abusive clauses (including floor clauses) and from the beginning, i.e. without any time restriction. The European Court of Justice also ruled on Tuesday that it is possible to demand the restitution of amounts considered abusive if a mortgage has already been executed and even if the property has already been sold.
This new judicial twist is due to the fact that the Court of Justice of the European Union (CJEU) ruled on Tuesday in four rulings concerning these loans the option of claiming the amounts unduly charged for the floor clauses prior to the Supreme Court ruling dated 9 May 2013, which limited the retroactive effects to this date.
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Floor Clause: claiming as soon as the mortgage is signed
The Provincial Court of Madrid has recognised a consumer's right to claim from a financial institution the amounts unduly charged for floor clauses from the time the mortgage was signed, and not only from the time the clauses were declared null and void. In a ruling dated 19 April, the Madrid High Court upheld an appeal by a customer of the Credifimo financial institution against a previous ruling by the 33rd Court of First Instance of Madrid.
The ruling allows those affected by floor clauses declared null and void to recover the amount paid in excess since the signing of the mortgage in 2007, despite having a final ruling with which they could recover what was unduly paid since May 2013, which is the retroactivity limit established by the Supreme Court.
The case law of the Court of Justice of the European Union (CJEU) states that mortgage clauses considered abusive must be declared null and void, which means that the consumer has the right to be reimbursed the amounts unduly received by the bank as soon as the court declares the clause null and void. In Spain, the Supreme Court set 9 May 2013 as the deadline for claiming unduly collected amounts, without retroactive effect and regardless of the date on which the mortgage was signed.
Now, the Madrid court goes further and allows consumers to recover the amounts unduly charged from the time of signing the mortgage, which opens the door to thousands of claims from consumers who took out their loans before 2013. The ruling puts the effective judicial protection of those affected by the floor clause before res judicata, something that the consumer association Asufin describes as "very important and innovative, because it moves in the direction of consumer protection".
The Provincial Court judges Miguel Ángel Lombardía, Ramón Badiola and Lorenzo Vaquero emphasise that the time limitation imposed by the Supreme Court is tantamount to depriving consumers who signed a mortgage before that date "of the right to obtain full restitution of the amounts they have unduly paid to the bank".
And this only guarantees "limited protection" to those mortgaged before that date, making such protection "incomplete and insufficient and not an adequate and effective means of stopping the use of that clause", the judgment continues.
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Single-parent family: 32 weeks for paternity leave
A court in Palma de Mallorca has recognised the right of a single-parent family to have an extra 16 weeks of maternity leave, up to 32 weeks in total. The events took place last Thursday, where the Contentious Administrative Court number 1 of Palma ruled that a single-parent family was entitled to 32 weeks of leave, a sum of the 16 weeks corresponding to what was previously known as maternity leave and the 16 weeks of paternity leave. This has "equalised rights with two-parent families", STEI Intersindical reported, according to Europa Press. The union has called for the court ruling not to be appealed and for legislation to be passed to prevent single-parent families "having to go through the ordeal of going to court" to obtain the 32 weeks of leave to care for newborn babies. This ruling comes after the request of a single parent teacher. Last February, a ruling was requested by the 2nd Contentious-Administrative Court of A Coruña, in response to a similar request from a civil servant, who was also granted the right to 32 weeks' leave to care for her child.
The 16th Social Court of Valencia also recognised the extension of the 16 weeks of leave in May last year for a single parent family, stating that a single parent cannot see the time required by law to care for a child reduced. The ruling found that "The denial of the right to such an extension/accumulation of both leaves in single-parent families deprives the child of that right and discriminates against the woman", whether she is a woman who has become a single parent or if the other parent is deceased. Precisely, the court pointed out that in the case of the mother's death, the law does provide for the other parent to accumulate the leave of both parents. The aim is for the single parent family to have the same rights as a two-parent family.
The High Court of Justice of the Basque Country already in 2020 recognised a nurse the opportunity to add the leave (then 8 weeks) for the second parent, arguing that being a single parent household "does not delimit a different bond of filiation determining the care and attention of the child, and its own rights". Along the same lines we also find other rulings issued by courts in Andalusia and Madrid. The Ministry of Social Rights, headed by Ione Belarra, has indicated that the Family Law that it intends to promote in the future will include the extension of leave up to 24 weeks. In the first quarter of this year alone, Social Security processed 123,076 birth and childcare benefits in Spain, 58,768 for the first parent, who is usually the mother, and 64,308 for the second. The highest number of benefits was in Madrid, followed by Catalonia and Andalusia.
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