Resumen de Spanish Courts, the Court of Justice of the European Union, and Consumer Law: A Theoretical Model of their Interaction

Fernando Gómez Pomar , Karolina Maja Lyczkowska

• Preliminary references to the Court of Justice of the European Union by Spanish courts have experienced a sudden surge in the crisis years, and especially in the past two years. The content of those references is largely linked the protection of consumers facing foreclosures following mortgage loan default. We build a tentative theory of the behavior of Spanish civil and commercial courts based on the observed fact that Spanish courts have been confronted with a pressing social situation affecting large numbers of heavily indebted families, and on our hypothesis that the median court seems to have policy preferences over mortgage debtors protection diverging from that embodied in the Spanish substantive and procedural rules on the matter (both before and after the reforms undertaken post financial crisis). The opportunity to raise preliminary references on the compatibility of Spanish rules with Directive 93/13 changes the strategic interaction between the Spanish Government and the courts, allowing for enhanced opportunities, and reduced costs, for courts to satisfy their preferred policy outcomes as to protection of mortgage debtors. The recent pattern of references seems to fit well with the factors we identify as explaining a larger use of the preliminary reference option by courts.