The expected pronouncement of the CJEU on the retroactivity of the refund of sums obtained by banks through the arrangement of the GROUND CLAUSEwhich is expected in mid-July, together with the new fronts opened for the foreclosure of mortgaged assets in Spain, in relation to the securitisation and assignment of unpaid credits, for which a major conflict is expected, constitute new dark clouds in the Spanish mortgage panorama. This difficulty is not good news, since mortgage collateral is the basis of long-term credit and an essential element of investment stability.

For this reason, a profound reflection must be made on what is wrong with a system that is currently in permanent conflict. On other occasions I have referred to this (as early as 2009 in ElEconomista) to the need to react with negotiated means to the avalanche of evictions that was shown to be of no benefit to creditors and, on the contrary, so damaging to society as a whole. Today, after several legislative reforms resulting from the Aziz judgment of 14 March 2013 (C-415/11) - laws 1/2013, 8/2013; RDL 11/2014; 9/2015; 19/2015, 25/2015 and 42/2015 - the situation continues to generate tensions.

The mortgage guarantee has been a purely legal and formal element. Before the Aziz ruling, the Constitutional Court declared - as early as 1981 - its constitutional legality based on the possibility, albeit limited, to resort to a declaratory procedure; to suspend the enforcement procedure and to obtain provisional measures. But all this was refuted by the European Court of Justice.

The Aziz judgment - clearly forced and indeed of doubtful admissibility, as demonstrated by the opinion of the Advocate General, who nevertheless supported the ruling by improving the grounds for its admissibility - was an absolute shock to our enforcement system.

This judgment, which opened the ban, in the EU and Spanish Supreme Courts, has had knock-on consequences that have an impact on property enforcement, not only from a mortgage and procedural perspective, but also from a civil perspective, as evidenced far beyond the previous interpretation of Article 345 TFEU, by Article 28 of the new Directive 2014/17/EU, which has yet to be transposed.

In Spain, in addition to the procedural consequences of the weakening of the summary privilege, already diminished in Law 1/2000 on Civil Procedure, we find a series of rulings of the First Chamber of the Supreme Court in relation to the limits of serialised general contractual conditions - which, as far as we are concerned here, may mislead the interpreter on some concepts.

First, on the horizontal value Directive 93/13 on unfair terms, which, despite the important REFIT exercise in contractual matters, is not subject to evaluation by the European Commission. This Directive has been considered by the CJEU as an essential element of the contractual system, linked to public order and the objectives of the European Union and independent of the temporal effectiveness of the rules whose adequacy is being debated. Within this interpretation aformalist and finalistThe lack of action on the part of the Spanish legislator - who has been very active in recent years - in relation to notarial activity in serial contracts is surprising.

Secondly, the debate on the lack of a genuine notarial legality check is limited to a formal issue of the hierarchy of norms. Leaving aside other arguments (among which the introduction of notarial legality control in Law 24/2001 is not insignificant), it is clear that the notary analyses, assesses and decides on the formal and material regularity of the legal transactions that are submitted to his office, because, strictly speaking, the only body of officials that has legality control is the judiciary.

The notary is present in the formation of the contract and in its stipulation, in the delivery of the financed asset, in the delivery of the financing itself and it is obvious that his function and assistance is essential to form a correct negotiated will of the parties. How is it possible that this matter is not regulated despite it being a precept? "layout in search of law". which has gone through Law 15/2015, 19/2015, 25 /2015 and 42 /2015 without finding legislative support?

The notary is also a useful instrument for the CJEU and, through the General Council of Notaries, must be able to ask relevant questions for preliminary rulings (see Art. 267 TFEU), but above all his role in foreclosure is of interest. Its control position in the issuing of enforceable copies, the basis for the creditor's aggressive action according to Article 517 of the LEC, should be reinforced; its responsibility, including documentary responsibility, in determining the outstanding balance, should be modified and increased. Along these lines, the free choice of notary for contracting a loan and his territorial competence to prepare the execution and execute, which is the formula, must be demanded, the ticket, The notary's office is the best guarantor of consumer protection - hopefully also for the small and medium-sized businesses that are genuinely disadvantaged by the system. Now, the Court of First Instance of Jerez, in formulating the preliminary ruling question C-598/15, has the opportunity to clarify that the notary must have clear instruments of communication with the judge in the out-of-court procedure of § 129 HL. He is not a 'silent witness' on whom the client can 'go to another'. He is obliged by reason of his function to notify the judge of his perception, as a specialised practical jurist, that the controls of transparency, insertion and content have not been adequately complied with in the agreement. This direct communication with the judge will avoid the effect of the STS of 23 September 2015, which, by obliging banks to pay fees, imposes the establishment of appropriate instruments against clientelism that would aggravate the consumer's position. It will be the basis for the extrajudicial control of the enforcement of these clauses, helping to interdict unfair conduct and therefore economic growth, in which the arrangement of long-term financing is essential.