Statement Regarding the Position of the Advocate General of the Court of Justice of the EU on IRPH
In relation to the position made public today, September 10, 2019, by the Advocate General of the CJEU in a preliminary ruling concerning a mortgage loan referenced to the IRPH, and without prejudice to having to wait for the ruling of the CJEU in the coming months, we state that:
1st The Advocate General does not consider either the IRPH index or the clause incorporating it into the loan contract to be null or abusive.
2nd The Advocate General reaffirms that Spanish courts are competent to analyze in each particular case the compliance with transparency obligations and recalls that the Supreme Court, in its ruling of December 14, 2017, already ruled on a similar contractual clause.
3rd In any case, in the specific instance, the Advocate General considers that the transparency requirements of Directive 93/13/EEC have been met, taking into account that the IRPH is an official reference index that is published in the Official State Gazette.
Below, for your interest, we reproduce certain paragraphs from the Advocate General’s writing:
– “Indeed, the economic burden arising from the loan could be anticipated and calculated by the consumer, who was in a position to evaluate it before entering into the contract” (paragraph 119).
– “the claimant… was aware of the fact that the amount of the repayments he had to make was the result of the sum of the IRPH Cajas plus the spread and that, furthermore, the information regarding the specific operation of the IRPH Cajas was accessible due to its publication in the Official State Gazette” (paragraph 122).
– “the fact that the IRPH Cajas is an official reference index published in the Official State Gazette allows for the presumption that a typical consumer finds it relatively easy to access the calculation systems of the different official indices and compare the various options offered by banking entities” (paragraph 123).
– “The set of previous considerations leads me to conclude that the banking entity fulfilled the transparency requirement imposed by Directive 93/13” (paragraph 124).
– “It is up to the referring judicial body to carry out the checks it deems necessary in this regard” and that “it is up to this judicial body… to verify whether this banking entity complied with the information obligations set forth in Circular 8/1990” (paragraph 124).
