The Court of Justice of the European Union (CJEU) has ratified the Supreme Court ruling on the IRPH index in mortgages by indicating that the clause, although it is not clear, is not necessarily abusive and goes one step further by considering the delivery of an informative brochure for the consumer with the evolution of the index, as imposed by the Spanish high court.
In his response to the second preliminary question that the head of the Court of First Instance number 38 of Barcelona, Francisco González de Audicana, referred Europe so that the CJEU could be more precise in its interpretation of the use of the IRPH index in mortgages, the Ninth Chamber of the Court of Justice maintains that for there to be transparency, it is not necessary to deliver a brochure to the consumer before the contract that includes the previous evolution of the index, nor that the contract includes a specific definition of the index, given that the information related to the IRPH index “is the subject of official publication”.
The CJEU order, published on Wednesday, softens the requirements imposed by the Supreme Court in its ruling , which did confirm the lack of transparency in the marketing of mortgages referenced to the IRPH and indicated as necessary the delivery of an information brochure with the evolution of the index in the previous two years.
The nuance of “good faith”
According to the CJEU, “the mere circumstance that it is not drafted in a clear and understandable manner does not, by itself, confer an abusive character”, reaffirming the ruling of the Supreme Court in November 2019 that not every non-transparent clause is necessarily abusive.
But there is a nuance. Only those clauses “that have not been individually negotiated, when contrary to the requirements of good faith ” cause a “significant imbalance” between the bank and the consumer, affecting the latter, will have this consideration, it exposes in the car . However, the court qualifies, the existence of this imbalance “cannot be limited” to comparing the total amount of the operation and the costs that this clause places in charge of the mortgaged.
In this regard, one of the most controversial of the ruling, the European court is open to the fact that if a judge considers that a clause is not drafted in a clear and understandable way , he must carry out an examination to determine if it is abusive.
From the Association of Financial Users (Asufin) considers that the car gives rise to “continue battling” because “it can be shown that the clause that introduces this index causes an imbalance to the detriment of the consumer and is, therefore, abusive.”
In another clarification requested by the Court of Barcelona, the CJEU establishes that the national judge must offer the consumer the possibility of choosing between reviewing his contract by substituting the abusive clause that sets a variable interest rate with another index provided by law on a supplementary basis. or proceed to the cancellation of the mortgage contract as a whole, when it cannot survive without that clause.
Shortly after the November 2020 ruling of the Supreme Court, the first sentence in this sense was published, signed in a Court of Córdoba that declared the clause null, forcing the entity (in that case, Caja Rural del Sur) to return the customer received. too much for the use of the IRPH and to replace the index with the Euribor , to which most mortgages in Spain are referenced.
The CJEU has resolved the preliminary ruling by an order and not a judgment because there is already jurisprudence that allows the case to be resolved without deliberation.