Europe declares spanish courts have to control IRPH

Mortgage, Procedural law

The Supreme Court of Justice of the European Union has considered that the Spanish courts of justice should ensure the clear and comprehensible nature of the clauses contained in mortgage agreements that establish the application of a variable interest rate based on the benchmark index of the savings banks (IRPH).

Two years after the Barcelona District Court no. 38 submitted a request for a preliminary ruling before the CJEU regarding the interpretation of Council Directive 93/13 / EEC on abusive clauses in contracts concluded with consumers, in relation to the clause regarding the variable interest rate IRPH-Cajas, on March 3, the Judgment was handed down by the CJEU that resolves this issue considering, unlike what the Supreme Court Plenary had resolved 669/2017 of December 14, where in the mortgage loan agreements concluded between a consumer and a professional, the clause that establishes the application of a variable interest rate based on IRPH must be subject to the abusive control derived from the aforementioned Directive.

The Supreme Court had excluded this control by considering that the clause that determined the application of IRPH-Cajas responded to the application of a legally defined and regulated reference index, not being the predisposing party who defined it contractually but referred to an official regulated index through legal provisions.

On the contrary, the CJEU considers appropriate to analyze whether it is a transparent clause, and this not only implies that the clause is understandable on a formal and grammatical level, but also allows the average consumer, normally informed and reasonably attentive and insightful, that they be able to understand the specific operation of the mode of calculation of the referred interest rate and to assess the economic consequences of referencing your loan to that index.

It must be the national judges who, after individually analyzing each case, will determine whether this clause should be declared abusive, for the CJEU to resolve that it is not appropriate to leave the loan without interest rate, but that this should be replaced, in the absence of a different agreement between the parties, by the supplementary index provided for in the fifteenth additional provision of Law 14/2013, of September 27, 2013. In this sense, the application of the average rate of mortgage loans over three years will proceed, for the acquisition of free housing, granted by credit institutions in Spain (IRPH Entities) applying a differential equivalent to the arithmetic average of the differences between the type that disappears and the aforementioned, calculated with the data available between the date of award of the contract and the date on which indeed the substitution of the type occurs.

Next, a link from the Bank of Spain simulator is attached, which allows calculating the differential to be applied if the nullity of the IRPH-Cajas is declared and, in the absence of an agreement between the parties, the IRPH-Entitidades must be applied in accordance with the fifteenth additional provision of the Law 14/2013