Regarding the conclusions of the Advocate General of the ECJ, published today September 10, 2019, in a preliminary ruling regarding a mortgage loan linked to the IRPH index, and pending the final ruling of the ECJ, expected in the coming months, we would like to point out that:
- The Advocate General does not deem the IRPH nor the clause incorporating it to the loan contract neither void nor abusive.
- The Advocate General reaffirms that Spanish courts are competent to assess, in each particular case, compliance with transparency obligations and recalls that on December 14, 2017 the Supreme Court already ruled on a similar contractual clause.
- In any case, in this particular case, the Advocate General considers that the transparency requirements set out in Directive 93/13/EU have been met, taking into account that the IRPH is an official reference index published in the Spain’s Official State Gazette.
Due to their relevance, below are included a series of paragraphs taken from the Advocate General’s document:
- “Indeed, the consumer could have foreseen and calculated the economic burden derived from the loan and should have been able to assess it prior to entering into the contract” (paragraph 119).
- “the plaintiff… was aware of the fact that the amount of the payments he was required to make were the result of the sum of the IRPH Cajas index plus the spread and that, on the other hand, the specifics on how this IRPH Cajas index is calculated was accessible, as it had been published in Spain’s Official State Gazette” (paragraph 122).
- “based on the fact that the IRPH Cajas is an official reference index published in the Official State Gazette, it can be presumed that the average consumer should be able to easily access the calculation systems of the different official indexes and compare the different options offered by banking institutions” (paragraph 123)
- “These considerations, taken as a whole, lead me to conclude that the banking institution complied with the transparency requirement established by Directive 93/13” (paragraph 124).
- “it is for the national court to perform the verifications it deems appropriate in this respect” and that “it is for this national court… to verify whether the banking institution fulfilled the information requirements set out in Circular 8/1990” (paragraph 124).