The Court of Justice of the European Union (CJEU) has clarified that a mortgage clause on IRPH benchmark that is not clear is not necessarily abusive. In addition, it does not consider it necessary to deliver a brochure to the consumer that collects the evolution prior to the index, as argued by the Spanish Supreme Court. It is estimated that there are some 300,000 mortgage loans still referenced with this index.
The Ninth Chamber of the Court of Justice maintains that, in order for there to be transparency, it is not necessary to deliver a brochure to the consumer before the contract that includes the evolution prior to the index, nor that that contract includes a specific definition of the index, given that the Information related to the IRPH index “is the subject of official publication.”
This would soften the requirements it imposed on its judgment of the Supreme Court, who understood that it was necessary to deliver a brochure with the evolution of the index in the two previous years.
This order responds to the prejudicial question that the head of the Court of First Instance number 38 of Barcelona, Francisco González de Audicana, raised to Europe so that the CJUE was more precise in its interpretation of the use of the IRPH index in mortgages.
On the other hand, the European Court determines in its order that if a judge considers that a clause is not drafted in a clear and understandable way, it must still carry out an examination to determine whether said clause is abusive. Thus, it is reaffirmed that not every transparent clause is necessarily abusive, as the Supreme Court already ruled in November 2019.
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