The Supreme Court has ruled out declaring the mortgage clause used by the Mortgage Loan Reference Index (IRPH) null and void as generally abusive. The high court, in two rulings published this Wednesday, entrusts the courts with the task of individually analyzing each contract and determining whether, in the marketing of the IRPH, there was a lack of transparency and, if applicable, whether it is abusive for the consumer.
According to the rulings collected by Europa Press, the Supreme Court establishes that “whether or not the transparency control of the clauses that contain the IRPH as a reference index is passed does not allow for a single answer,” since it depends on the specific circumstances of each loan and the facts proven in each litigation. In this way, it rejects the possibility of an automatic and generalized nullity, in line with what already advanced by the Court of Justice of the European Union (CJEU).
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The Supreme Court emphasizes that the mere lack of transparency in the marketing of the IRPH does not in itself imply its nullity, although it does open the door for the clause to be declared abusive. The court provides judges with a series of guidelines to study, case by case, the level of information that the client received about the operation and evolution of the index, as well as the specific circumstances of the contract. “The declaration of lack of transparency would be a necessary, but not sufficient, condition for the assessment of abuse,” states a ruling.
Criteria that courts must assess to determine the abusiveness of the IRPH
Among the criteria that the courts must assess include the date and amount of the loan, as well as the regulations applicable at all times. In the case of mortgages prior to December 9, 2007 and greater than 150,253 euros (25 million pesetas), the Order of May 5, 1994 on transparency in financial conditions will not apply, so judges must analyze whether there was sufficient information by other means. The publication of the Bank of Spain’s circulars in the Official State Gazette is generally considered a sufficient guarantee of transparency regarding the composition and evolution of the IRPH, although the mention of circulars not officially published will not be sufficient.
Regarding possible abuse, the Supreme Court clarifies that it must be assessed at the time of contracting and in relation to the interest rate actually applied, not only based on the reference index. Furthermore, the comparison between the IRPH and other indices, such as the Euribor, should be made “with great caution”, since the spreads and conditions of each loan can vary substantially.
The decision maintains litigation over mortgages referenced to the IRPH, an official index used since the nineties and subject of controversy due to its evolution, usually less favorable for the consumer than other indices such as the Euribor.
With this ruling, the Supreme Court agrees with the banks in two cases analyzed, considering that there was no lack of transparency in the marketing of the IRPH and that the clause is not abusive. The resolution establishes doctrine for pending litigation, but avoids a generalized solution.