Conclusions of the CJEO Attorney General
On September 10, 2019, those affected by an IRPH mortgage will set it on fire. The CJEO’s attorney general gave the reason to the thesis we advocate that the IRPH can be abusive because of a lack of transparency. Let us look at the main conclusions of Case C-125/18M Gómez del Moral Guasch / Bankia:
1.Advocate General Szpunar, it proposes to the CJED that, in its future judgment, it should declare, first, that a contractual clause agreed between a consumer and a professional, such as the IRPJ Cajas clause, which sets an interest rate taking as a reference value one of the six official legal benchmarks that may be applied by credit institutions to variable-rate mortgage loans, is not excluded from the scope of Directive 93/13. Although the IRPH is a type of legal reference, it is not mandatory for the bank and can therefore be counted by the national judge.
2.No the exception to the Directive which considers ‘that the assessment of the unfairness of the terms shall not relate to the definition of the main subject-matter of the contract or to the adequacy between price and remuneration, on the one hand, or to the services or goods to be provided in return, on the other hand, provided that those terms are clearly and understandably worded’ since that exception has not been transposed into Spanish law.
3.La IRPH Box calculation formula is complex and unre transparent to an average consumer.
4.No bank may not be required to offer different consumer benchmarks, as according to the attorney general the IRPH Cajas was an official index published in the BOE, relatively easily accessible. Therefore, for the attorney general, the bank does not need to compare the IRPH with the other official indices.
5.Al to check the transparency of the IRPH Cajas clause, the national court must check, taking into account all the circumstances surrounding the conclusion of the contract, on the one hand, whether the contract transparently set out the method of calculating the interest rate, so that the consumer was in a position to assess, on the basis of precise and intelligible criteria , the economic consequences arising from it (with a reference to developments in the past of the IRPH) and, on the other hand, whether that contract complied with all the reporting obligations laid down in national legislation.
6.The Advocate General does not rule on the consequences arising from the declaration of the abusive nature of the IRPH, so we do not know whether to apply the Euribor, leave the loan une interestless or what consequences. Something very important is left unanswered, for now.
The CJEO Advocate General’s Opinion document can be downloaded here.