The answer is yes. The Provincial Court of Pontevedra has decided so in its recent resolution of 6th April 2016, implementing the doctrine established by the Court of Justice of the European Union dated 19th November 2015. Said resolution breaks the link between the main loan contract and the guarantee which warrants it, proceeding to independently analyse the guarantor’s position.
To date, even if the guarantor were a natural person, if the loan was granted for the sake of the development of business or professional activities, the same condition of “entrepreneur/professional” was assigned to the guarantor, thus the regulation on consumers and users was not applicable.
Said criteria has since varied with the aforementioned doctrine of the Court of Justice of the EU, applied by the Provincial Court of Pontevedra to a supposition which acknowledged the condition of consumer of the parents of an entrepreneur who guaranteed the loan granted to their son’s company, without any reason or relationship with the company other than their condition as parents of one of the shareholders.
As a result of considering that guarantors to be consumers , the Provincial Court declared the default interest clause (20 points on top of the nominal interest rate) as null for being unfair. It’s worth noting that the High Court declared in a recent judgement 265/2015 that default interest at a rate higher than 2 points above the nominal interest rate is unfair in contracts between consumers and users.
Such resolutions open the door for those persons who guaranteed loans granted to third parties as parents or friends, to dispute the validity of those conditions deemed to be unfair (such as default interest rate clauses), and which pursuant to their condition as consumers, may now be declared null.
Ismael Marina Schneider
Vilá Abogados
For more information, please contact:
3rd June 2016
