The Supreme Court (SC) has handed down the first three judgments on the clauses that incorporate the Mortgage Loan Reference Index (IRPH) as a reference index for mortgage loans, following the latest ruling by the Court of Justice of the European Union (CJEU) last November, following the preliminary rulings by Judge Francisco González de Audicana, head of the 38th Court of First Instance of Barcelona, and Judge Carmen Robles Zamora, of the 2nd Court of First Instance of Ibiza.
These are judgments numbers 42, 43 and 44/2022 of 27 January, notified today.
The Supreme Court points out that this Chamber had already ruled on these same clauses in November 2020, and that the orders of the CJEU in November 2021, by answering the questions raised on this issue, confirm the correctness of this case law of the Chamber.
First of all, the CJEU reiterated that if a national court finds a lack of transparency of the terms defining the main subject matter of the contract, such as in the case of the terms incorporating the IRPH as a reference rate, it must then examine whether such a term is "unfair" within the meaning of Directive 93/13.
In other words, it must assess whether it is a term which, contrary to the requirements of good faith, causes, to the detriment of the consumer and user, a significant imbalance in the rights and obligations of the parties arising from the contract.
The Civil Chamber highlights that in March 2020, the CJEU established two transparency parameters for this type of clause. According to the first of these, the publication of the IRPH in the BOE allowed the average consumer to understand that the index was calculated according to the average rate of mortgage loans over three years for the purchase of a home, thus including the spreads and costs applied by such institutions, so that this publication meets, in all cases, the requirements of transparency as regards the composition and calculation of the IRPH.
The second transparency parameter established by the CJEU was the information that the lender had provided to the consumer on the past development of the index.
The Supreme Court recalls in its judgments that this obligation to provide information has been significantly qualified by the orders of the CJEU of last November, since they allow the consumer not to be provided, prior to the conclusion of the contract, with an information leaflet that reflects the previous evolution of that index, for the reason that the information relating to that index is the subject of official publication.
It also states that, in any event, even if it were considered that the lack of direct information on the past performance of the IRPH determines the lack of transparency of the clause in question, a finding of unfairness must be made.
It stresses that the offer by the bank of an official index, approved by the banking authority, cannot in itself violate good faith.
It also recalls that the central government and several autonomous regional executives have been considering, through regulatory standards, that the IRPH index was the most appropriate index to use as a reference index in the area of financing subsidised housing, so it is illogical to consider the incorporation of that same index to loans arranged outside that area of official financing as an action contrary to good faith.
The SC emphasises that from the point of view of the imbalance of the parties' rights and obligations, which must be assessed at the time the contract is signed, the more or less favourable evolution of the index during the life of the loan cannot be decisive.
The fact that in its subsequent development the loan is more expensive than others does not constitute a determining imbalance of unfairness, given that the control of content cannot result in a price control and the CJEU has ruled out that the banks were under no obligation to provide comparative information on the different official indices, on their future evolution or to advise their clients on the best possible loan, the High Court emphasises.
Finally, it indicates that it has not been justified that the IRPH index, which is in any event audited by the public administration, is more easily manipulated than the other official indexes.
In application of these criteria, the Supreme Court makes the relevant pronouncements on the appeals analysed in each case.