This chapter examines the role that Article 47 of the Charter has played in unfair terms cases before the Spanish civil courts. Almost all references to Article 47 have been part of broader citations of the CJEU's case law, to justify certain interpretations and/or explain why procedural rules were changed. The impact of the CJEU's case law on Spanish civil procedure will be discussed first, as well as possible explanations for the high number of preliminary references from Spain (section 4.1). Special attention will be paid to the position of civil courts vis-à-vis the Constitutional Court, with a view to understanding what is behind, in particular, Sánchez Morcillo and Finanmadrid.

The rest of this chapter follows the same structure as Chapter 3. The national background and implementation of key CJEU judgments – Asturcom, Finanmadrid and Margarit Panicello – will be examined in respect of the right of access to court (section 4.2). Aziz and Sánchez Morcillo, which specifically concern the Spanish mortgage enforcement regime, will be analysed separately, in respect of the right to an effective judicial remedy and the principle of equality of arms (sections 4.3 and 4.4). Lastly, a landmark judgment of the Spanish Supreme Court and the preliminary reference in Irles López on so-called cláusulas suelo (‘floor clauses’) will be further explored in respect of the right to be heard (section 4.5). Here, Article 47 operates as a hinge between EU (consumer) law and national (procedural) law. It may fulfil a reconciliatory function in cases where there is a (perceived) conflict, where it can be used to open up rigid or restrictive rules with due regard for the principles underpinning civil procedure.

BACKGROUND: MANY PRELIMINARY REFERENCES FROM SPANISH CIVIL COURTS

IMPACT OF THE UCTD ON SPANISH CIVIL PROCEDURE

A Missing Link Between Substantive and Procedural Protection

In 2008, 15 years after the adoption of the UCTD, the Spanish government believed that Spain was among the EU Member States that offered the strongest legislative protection to consumers against unfair terms.Over the next 12 years (2008 to 2020), the CJEU held, on various occasions, that Spanish procedural law, in particular, did not offer sufficient protection.