L'incidenza del diritto dell'Unione Europea nel processo spagnolo di esecuzione ipotecaria nel prisma del principio di effettivita

In this work we will carry out a study on the compatibility of the Spanish mortgage enforecement foreclosure process with European Union law, especially from the perspective of the principle of effectiveness. First, the relationship between the national courts and the European Court of Justice will be examined. National courts are obliged to provide the necessary remedies for citizens to apply Union law. From that point, we will explain the principle of the procedural autonomy of the States and the two principles with which the ECJ has limited it: the principle of effectiveness and the principle of equivalence. We will focus on the principle of effectiveness, from which we will analyze its essential content and scope. In particular, we will examine the principle of effectiveness applied to the European consumer law. This area has a particular dimension because, as a matter of Community public policy, it imposes greater obligations on national courts because of its mandatory content. These obligations include the ex officio control of unfair terms by the national court. The principle of effectiveness of consumer law has an important impact on national procedural law. As far as the Spanish mortgage enforecement foreclosure procedure is concerned, the ECJ has interpreted to a large extent of its procedures that the Spanish regulation was contrary to Directive 93/13/EEC. However, not the whole procedure is incompatible. The problem is limited to cases where the application of EU law may be hampered, but in any case there is a basic premise and that is that specific national procedural regulation must be included in the scope of application of EU law.