The Court of Justice of the European Union (CJEU) has ruled this Thursday that it must be guaranteed that consumers with a mortgage referenced with the IRPH received sufficient information about the method of calculating the index. In addition, it ensures in the ruling that the data was not accessible. However, it has left it in the hands of the Spanish courts to verify this case.
The court indicates, however, that a 1994 Bank of Spain circular from which it follows that a negative differential had to be applied to the IRPH is pertinent, something that is not communicated to the consumer in the case. court, as well as that the national judge will have to ascertain whether an average consumer could be required to obtain that information himself.
The IRPH protagonist of numerous resources
The Reference Index for Mortgage Loans (IRPH) has been the subject of numerous appeals and judgments in recent years, both by Spanish courts and by the CJEU, whose verdicts have given rise to different interpretations by national judges regarding its opaque nature. or abusive of it.
The sentence published this Thursday responds to the questions by a court in Palma de Mallorca about a mortgage in the hands of Banco Santander, loans in progress, but includes the rates and commissions in calculation, so it is usually more expensive than other indices such as the Euribor .
The court asks if the positive differential that is applied when calculating the IRPH is contrary to community legislation, given that, according to its interpretation, the Bank of Spain urged in a circular of 1994 to apply a negative differential and, if so, if this constitutes an unfair practice that must be taken into account to assess whether the clause that referred the mortgage to the IRPH is abusive.
Response from Santander Bank
Banco Santander defends that the clause in question was negotiated individually with the client and that the IRPH is an official and public index and, therefore, accessible to consumers. In its ruling, the CJEU recalls that it is up to the national judge to rule on a specific clause depending on the case, but it provides certain “indications” to be taken into account.
In the first place, it points out that in order to assess the transparency and possible abusive nature of the clause, the 1994 circular is pertinent, from which it is inferred the need to apply a negative differential to the reference index to equalize the interest rate with the interest rate. market interests.
It recalls that the disputed clause indicates that the index is described in another officially published 1990 Bank of Spain circular and asks the Spanish judge to verify whether the information thus provided was sufficient to allow an “average consumer, normally informed and very carefully reasoned and insightful actually had knowledge of the benchmark index calculation methods”.
Although he points out that it is the Spanish judge who must determine the importance of the circular to draw the attention of the entities to the type of IRPH in relation to market rates and the need to apply a negative differential.
add that, although this information was published in the Official State Gazette, it appears in a 1994 circular and not in the 1990 one to which the clause referred, so the judge must verify whether obtaining this information meant carrying out an activity that, being in the field of legal research, could not be required of an average consumer.
Finally, regarding the possible abusive nature of the clause, he points out that Banco Santander will have to prove that it was negotiated individually and, if not, the Spanish judge will have to assess whether the requirement of good faith was breached and the possible existence of a significant imbalance to the detriment of the consumer taking these indications into account.
