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Cobro internacional de alimentos

El cobro internacional de alimentos es sin duda la materia más compleja entre las incluidas en el Derecho de familia internacional, cuyo referente europeo es el R. (CE) del Consejo, 4/2009, de 18 de diciembre de 2008.  Es compleja por el doble deçapage que presenta:...

New law regulating real estate credit agreements
Nov 17, 2017

On 3 November, the Council of Ministers approved the draft law regulating real estate credit agreements. The purpose of this regulation is to transpose Directive 2014/17/EU, with an unquestionable improvement in the position of borrowers (see comparative table annexed to the information provided by the Council of Ministers (Vid.www.lamoncloa.gob.es). The Directive is already in application in Spain, since without prejudice to the sanctions that correspond to the Member State for its late or inadequate transposition, it is the right of citizens to apply it at least vertically, as a direct effect of the provisions that are unconditional or sufficiently clear according to the abundant jurisprudence of the CJEU. The project has followed a complicated path, politically - given the moment of maximum autonomous community tension - and legally, insofar as the reports of the C.G. of the Judiciary and the Council of State highlighted the important shortcomings of the preliminary draft, which have not been fully corrected. Furthermore, the context in which the text is published, with the Government already being harassed by the European Commission insofar as Spain is notably late in transposing it, is complicated by the case law rulings pending in the CJEU on the enforcement of assigned credits, early maturity and interest for late payment. These rulings may cause some surprises in the context of the new law.

Logically, in the space of this Tribune it is not possible to make even a rough approximation of such a complex text (47 articles divided into four chapters; nine additional provisions; four transitional provisions; one derogatory provision and twelve final provisions), so I will limit myself to pointing out some general outline of the text from the perspective of private law.

The first issue that is particularly striking is that the Draft openly states (Final Provision ten) that Directive 2014/17/EEC will not be fully transposed, as this will require a subsequent regulatory development. The legislative policy applied is certainly not comprehensible, since even though two areas are in question: financial and regulatory of entities, under the competence of the Economy, and legal, mortgage and notarial, under the competence of Justice, it cannot, after a delay of nineteen months, publish a regulation with the rank of law that cannot be considered the vehicle for transposition.

The CJEU has stated that the transposition of legislation must be clear, and the States must provide guarantees in this regard, at the level that is appropriate under national law. Indeed, the Final Provision envisages a wide range of rules with regulatory status. Among them, I will highlight two: the voluntary standard mortgage loan contract, which is therefore pre-qualified (Article 12 of the Mortgage Act is also amended) and a reference to electronic loans, which sounds remarkably like the umpteenth breach of the principle of public title, and which the legislative process should be specified insofar as the electronic form is the signature of a private document, with the shortcomings that this implies in the context of private and public law).

It is worrying that one of the essential elements of the Directive, the FEIN, which must be transcribed - not transposed - as they are annexes, is directly applicable (Art. 2).

The confusing transposition stems from the subjective scope of the draft, which is also unclear. While the Directive refers to consumers - a perfectly coined concept referred to in Article 4 - the draft uses a novel technique by addressing natural persons, including, according to its Preamble, self-employed entrepreneurs. In doing so, it departs from the concepts of the European Union, which does not recognise the natural person as the addressee of its rules in this context, beyond product safety, but rather, in a broad concept of consumer, assimilates figures such as associations or foundations and, in a business sense, has defined the figure of the SME, be it a natural or legal person. This tertius genus, which will be applied in Spain, may present problems of recognition insofar as the transposition of European rules must be as uniform and horizontal as possible in all Member States.

Moreover, the natural person to whom the rule applies will not necessarily be the borrower or borrower - economically, the person who receives the money with which the property is financed - but rather it covers a series of positions in relation to the credit: guarantor, subrogated, novatee in the purpose or non-debtor mortgagor, which notably broadens the scope of the directive and evidently fragments the property financing market.

The second issue that I would like to address is the third transitory provision that provides for a period of ten days for the filing of an extraordinary enforcement incident provided that possession of the property has not been delivered. Although it is not stated, on the one hand, this is a response to the STJUE of 26 January 2017 which declares the first Transitional Provision of Law 1/2003 null and void, and on the other hand, it reinforces the Spanish position in the accumulated cases in relation to the assignment of credits in a package, for which the position of litigious credits is maintained.

In the interests of both creditor and debtor - without this being able to safeguard compliance with the transparency control - provision is made for free notarial involvement in the seven-day period prior to the approval of the loan. This raises to the status of law what was already laid down in a ministerial order as long ago as 1994, as well as in all notarial regulations, and this visibility promotes legal certainty and security and thus economic growth in the still hesitant real estate market.

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