REGULATION OF SPANISH MONITORY PROCEEDING ALLOWS THE JUDGE TO CONTROL EX OFFICIO THE EXISTENCE OF ABUSIVE CLAUSES

The Advocate General of the European Court had requested the Court to declare that the Spanish legislation in the case of a Monitory procedure should impose the Court Secretary the obligation to exercise control and report it to the Judge. The ECJ has already stated on previous occasions that the obligation to review abusive clauses is extended to the Monitory procedure. From 7 October 2015, Article 815.4 of the Civil Proceeding Law, amended by Law 42/2015, now allows the judge, at the request of the Secretary of Administration of Justice, to control the abusive clauses in a Monitory Proceeding based on a contract signed between an employer or professional and a consumer or user.

The judge will examine ex officio whether any of these clauses may be abusive and, after hearing the parties, decide what appropriate. For this procedure no lawyer or procurador intervention is necessary. If the abusive clause is estimated, the resolution will determine the extent of it, decreeing the invalidity of the claim or the continuation of the process without the application of abusive clauses. If estimates that there are no abusive clauses unfair terms, will declare it and the Secretary will require the debtor. In any case, the resolution may be appealed.

Spanish