Working Papers (Càtedra Jean Monnet de Dret Privat Europeu)

URI permanent per a aquesta col·leccióhttps://hdl.handle.net/2445/104554

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Seguros y otros productos hipotecarios asociados al préstamo hipotecario
(Càtedra Jean Monnet de Dret Privat Europeu, 2025-02) Longo Martínez, Antonio A.
The article analyses the lending institutions' practice of offering bundled and tied sales, which consists of offering other financial products or services together with mortgage loans. The article examines the differences between the two types of sales. Special attention is paid to insurance products and the opening of a payment or savings account.
Tratamiento automatizado de datos en la concesión de crédito
(Càtedra Jean Monnet de Dret Privat Europeu, 2025) Arroyo Amayuelas, Esther
: This article examines whether the law provides adequate protection for data subjects against the risks of technology when the lender uses automated decisions to grant credit. In particular, Directive 2023/2225 of 18 October 2023 on consumer credit agreements incorporates data protection as part of the legal regime for consumer protection, but this rule needs to be complemented by Regulation (EU) 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data and the recently adopted Regulation (EU) 2024/1689 of 13 June 2024 laying down harmonised rules on artificial intelligence.
Score automatizado en la concesión de crédito
(Càtedra Jean Monnet de Dret Privat Europeu, 2024-01-05) Guerrero Ovejas, Marta
This paper builds on the impact of the recent CJEU ruling in the SCHUFA case regarding the use of AI in the creditworthiness assessment. In the analysis, the recently approved AI Regulation, as well as the latest reform of the Consumer Credit Directive in 2023 have been considered in order to determine the path that the European Union is following with regards to the use of AI in the consumer’s realm. With all these elements in mind, it has been assessed the most problematic issues arising in this field, in addition to drawing attention to the successes and challenges ahead.
Cooperativas, financiación y consumidores vulnerables
(Càtedra Jean Monnet de Dret Privat Europeu, 2024-04) Tenza Llorente, María
The aim of this paper is to highlight the lack of a unitary and systematic regulatory treatment of vulnerable consumers. The analysis takes the exclusions contained in EU Directive 2014/17 of 4 February and the transposition thereof in article 2.4 (a) and (b) of Law 5/2019, 15 March, regulating real estate credit agreements, as a starting point. Following this, the paper focuses on the concept of cooperatives and on the varieties of which are of interest in this area (housing, service and credit cooperatives, that are briefly outlined, as well as the concept of vulnerable consumer introduced by Royal Decree-Law 1/2021, 19 January, in order to explore the possibilities that could be offered by the intervention of a cooperative in the granting of credit to vulnerable consumers.
Garantías que se pueden constituir registralmente para asegurar la financiación de obras de renovación de eficiencia energética
(Càtedra Jean Monnet de Dret Privat Europeu, 2024-03) Torres Amate, Paloma
From the point of view of the role that the Land Registry can play toward the renovation wave of buildings, his paper discusses the need to promote legislative reforms in order to guarantee the creditor’s position when financing the renovation of multi-unit buildings. Existing legislation provides for mortgages and other encumbrances on each unit, but the energy renovation of buildings requires adaptations to overcome difficulties arising, inter alia, from the informality of agreements reached by communities of owners, the principles governing land registration and the regulation of preferences among registered creditors.
En busca de soluciones para obtener financiación y acometer la renovación energética del edificio: la opción de compra en garantía
(Càtedra Jean Monnet de Dret Privat Europeu, 2024-02) De Barrón Arniches, Paloma
This study highlights the challenges associated with securing financing for energy renovation and improvement projects in older buildings. Green loans, aimed at facilitating such endeavors, are not always accessible to owners' associations comprised of elderly individuals. These associations often own buildings of historical significance that require substantial investments to meet current European energy efficiency standards. In exploring potential financing avenues, we are considering the establishment of a right of option to purchase in favor of the lender. This option would be secured against the property formerly designated for the caretaker of the building. Within the framework of Directive 2014/17/EU, our research examines the potential of the option to purchase to serve as a guarantee mechanism. It also delves into the implications of such an arrangement, as EU consumer law advocates for greater flexibility in lawful formulas for loan reintegration, including the transfer of collateral – in this case, the caretaker's residence – to the creditor.
Problemática práctica en la financiación de la renovación o rehabilitación de los edificios en propiedad horizontal
(Càtedra Jean Monnet de Dret Privat Europeu, 2024-01) Serrano de Nicolàs, Ángel
This study attempts to highlight, from an eminently practical point of view – thus discarding theoretical constructions that are unfeasible – the possible ways of obtaining financing with which the community of owners can undertake extraordinary repairs (expenses) and renovations or innovations (improvements). In essence, it is concluded that, given the cost and almost impossibility of a mortgage loan, due to the existence of other previous mortgages, it is necessary to resort to a personal loan, with or without a guarantee, with the problems caused by the liability arising from mortgage loans, and, in particular, to reinforce the reserve fund, which could be pledged, as well as its balance or future credits, such as those generated by advertising of façades or other receivables.
The law in the age of artificial intelligence and robotics: a case study of Atlas from a Tort Law perspective
(Càtedra Jean Monnet de Dret Privat Europeu, 2023-11) Torres Collantes, Alex
The law in the age of artificial intelligence and robotics faces many challenges to which our current legal systems may not yet have the proper tools to tackle them with. In recent years, we have seen the development of technologies which just ten or twenty years ago we wouldn’t have thought were even yet possible. From advanced AI-powered language models such as ChatGPT to driverless autonomous vehicles such as Tesla’s, it is undeniable that the science of intelligent machines advances at a pace that far outmatches that of its legal counterpart. The present study will seek to analyse both current and future regulatory proposals regarding the use of autonomous humanoid robots from a Tort Law perspective, both through the Spanish and European regulatory frameworks, in order to establish efficient legal solutions that offer satisfactory outcomes both for manufacturers and consumers.
Solving conflicts in multi-unit building renovation: the role of mediation and ADR Systems
(Càtedra Jean Monnet de Dret Privat Europeu, 2023-11) Viola Demestre, Isabel
The purpose of this paper is to show how mediation and other alternative dispute resolution (ADR) methods can assist in resolving interpersonal conflicts that arise in multi-unit buildings, particularly those related to minor or major renovation projects, as well as present some successful experiences in this context. The goal of ADR methods is to facilitate a consensus, a satisfactory agreement among homeowners for their multi-unit building ecological transition.
El fondo de reserva comunitario y su utilidad como objeto de una garantía pignoraticia.
(Càtedra Jean Monnet de Dret Privat Europeu, 2023) Espinet Asensio, Josep Maria
[eng] Condominiums require financing for the energy renovation of buildings. The reserve fund can serve this purpose, either as an instrument for channelling savings or through the constitution of security interests over it, although this would require certain legislative amendments.
Financiación bancaria, comunidad de propietarios y sostenibilidad. Reflexiones desde la perspectiva bancaria.
(Càtedra Jean Monnet de Dret Privat Europeu, 2023) Iniesta Torres, Xavier
[eng] Considering the neutrality goals set by the EU and given the difficulties of energy renovation of the Spanish housing stock, the paper considers ways of financing sustainable projects, paying particular attention to the problems that arise in condominiums, and the need for financial institutions' asset portfolios to become truly sustainable.
La capacidad crediticia de las comunidades de propietarios en actuaciones de conservación, rehabilitación y mejora energética. Incidencia del RD-Ley 19/2021, de 5 de octubre, y de la Ley de impulso a la rehabilitación 10/2022, de 14 de junio, en el régimen jurídico de la propiedad horizontal.
(Càtedra Jean Monnet de Dret Privat Europeu, 2023) González Carrasco, Carmen
[eng] The lack of legal personality of the board of owners in multi-unit buildings to contract external financing and become the debtor of loans for energy improvement (and other maintenance and rehabilitation works) of the building or estate is a barrier that Royal Decree Law 19/2021, 5 October (which was validated following the emergency procedure by Law 10/2022, 14 June) has sought to alleviate by giving the board "full credit capacity" through the amendment of art. 9.5 of the Consolidated Text of the Land Law. On the other hand, the regulation has relaxed the quorum for the adoption of community agreements on energy efficiency and improvement works in buildings. However, more often than not, the common assets will not suffice to cover the loan. Therefore, the owners of private elements will have to take part in the debt recovery proceedings (whether fast-track or not) and in the enforcement of the debt against their privately owned units. The intervention of the individual owners will continue to be necessary in order to register a security interest over the building, since, by contrast to what happens in other legal systems, in the Spanish model the building is nothing more than the private elements that compose it, together with other common elements that cannot be subject to separate encumbrances.
Net Zero Homes: Time for a Reset, The English Story
(Càtedra Jean Monnet de Dret Privat Europeu, 2023) Nield, Sarah
[eng] The built environment features prominently in the English strategy to attain net zero, because it is the second highest emitter of carbon after transport. This paper will reviews the English government’s journey on homes’ contribution to achieving net zero, taking The UK Finance Report Net Zero Homes: Time for a Reset (2022) and the Mission Zero Review (2023) observations as a guide. It will conclude that even before the current change of tack, the Government’s proposals were falling short and now the Government has all but given up on serious attempts to address homes’ contribution to net zero. Economic headwinds, but more significantly political opportunism, is creating dangerous messaging and divisions which can only undermine the UK’s net zero strategy at a time when around the globe the effects of climate change are being destructively felt. Net zero by 2050 remains a legal commitment but the strategy to effectively achieve net zero homes is now seriously undermined and likely to be challenged in the courts. This worrying development can only deflect attention away from tackling those constituent elements required to deliver net zero, be that investment, technical innovation, skills development as well as effective legal frameworks, which have drawn serious attention only amongst a select few.
Nuevas funciones de la enfiteusis
(Càtedra Jean Monnet de Dret Privat Europeu, 2023) Pozo Carrascosa, Pere del
[eng] Act 11/2022, of December 29, on urban, environmental and social improvement of neighbourhoods and towns has introduced an interesting novelty in the Catalan legal system, devising an unusual function for a classic institution of civil law. Specifically, it has given emphyteusis a function of real security of a former obligation to compensate the Administration for the increase in value of a property that has received public aid; this is accompanied by a complementary function, of allocating the rent to the payment of the forementioned debt. This research studies the legal configuration of this emphyteusis
Transparencia en el mercado de crédito hipotecario: un análisis económico
(Càtedra Jean Monnet de Dret Privat Europeu, 2023-03) Alascio Carrasco, Laura
[eng] This paper analyzes from an law and economics point of view, transparency in the mortgage credit market, based on Directive 2017/14 and Law 5/2019 that transposes the directive, regulating real estate credit contracts. The objective is to study what incentives the regulation generates and if, indeed, it increases consumer knowledge of this type of contract.
Precios y transparencia tras la Ley 5/2019
(Càtedra Jean Monnet de Dret Privat Europeu, 2023-03) Agüero Ortiz, Alicia
[eng] Litigation regarding the lack of transparency of mortgages’ price clauses in Spain is, simply, unmanageable. As is known, the Spanish Act on credit agreements for consumers relating to immovable property aims to tackle the problem of unfairness and lack of transparency of these clauses by imposing reinforced duties of transparency and various prohibitions, such as those of the floor clauses or those of linked sales. However, the problem has not been settled since there are matters to be resolved as the scope of the prohibition of the floor clauses, given the confusing scope of the norm; the control of these clauses in business loans and their possible incardination in advertising breaches; as well as the legality of the current practices on prices bonifications according to the number of additional products hired by the borrower. We will dedicate this working paper to the study of all this subjects.
The commencement of prescription and what the consumer’s awareness of the unfairness is within the unfair contract terms directive
(Càtedra Jean Monnet de Dret Privat Europeu, 2023-01) Ruiz Arranz, Antonio
[eng] Directive 93/13/ECC does not regulate prescriptions periods. However, some parameters can be drawn from the effectiveness principle that national legislation must consider to comply with Directive 93/13. This paper argues that the commencement of prescription for restitutionary claims following the unfairness of a term within the Directive 93/13 is determined with a reasonable discoverability criterion concerning the unfairness of the term. A consumer can discover the unfairness from the moment on which a litigation context concerning the term in question arises. Rather, the commencement of prescription cannot be postponed until a court of last resort has decided over the issue on the unfairness.
Problemática registral de los préstamos hipotecarios tras la L. 5/2019
(Càtedra Jean Monnet de Dret Privat Europeu, 2023-01) Tenza Llorente, Maria
[eng] L. 5/2019, of 15 March, relating to credit agreements on residential immovable property has proved to be problematic from the point of view of the Land Registry during the nearly three years since it came into force. These problems are due to the limited means of register qualification, especially with regard to the preliminary act, or the unsuitable design of the Register of Contractual General Terms and Conditions. More specifically, the existence of mortgage loans that include life insurance, the mandatory nature of Art. 24, regarding early maturity, and Art. 25, regarding interest for late payment, or the scant regulation of novations, are clear examples of the need to articulate an adequate legal response. It is also worth clarifying the exclusion relating to bank employees, as well as clarifying mixed cases, while also implementing specific protection measures for the household residence, reverse mortgages, vulnerable consumers and SMEs. Moreover, there is clearly a loss of legal certainty resulting from the declaration of nullity of foreclosures as a consequence of the abusive nature of early maturity clauses.
Integrating artificial intelligence into the mortgage credit market
(Càtedra Jean Monnet de Dret Privat Europeu, 2022-12) García Teruel, Rosa María
[eng] In order to avoid borrowers' over-indebtedness, Directive 2014/17/EU introduced the obligation to assess the creditworthiness prior to concluding a mortgage loan. To carry out this task, novel technological applications that use artificial intelligence and machine learning are emerging, as well as the use of alternative data, which ensures more predictive power. The purpose of this article is to analyze whether it is possible to use this technology in accordance with Directive 2014/17/EU and the General Data Protection Regulation. It also discusses the possible advantages and challenges that this technology may have.
La directiva (UE) 2015/2366, sobre servicios de pago (DSP2) y los pagos electrónicos
(Càtedra Jean Monnet de Dret Privat Europeu, 2022-07) Guimarães, Maria Raquel
[eng] Payment services are regulated within the EU Member States by the second Payment Services Directive, Directive (UE) 2015/2366. The replacement in 2015 of the first Payment Services Directive, Directive 2007/64/CE, had become a necessity because of the technological innovation on the payment markets experienced on the previous decade, including the increasing use of Internet banking, mobile banking and new payment instruments. In this text, we intend to emphasize the revised PSD updates that complemented the EU rules put in place in 2007 by the first PSD.

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