Article by María José Alamar published in LegalToday on 01/27/2022.
The opinion of the firm: Although the jurisprudence issued by the Supreme Court in relation to this matter is turning out to be unanimously dismissive for consumers and users, it is more than evident that it contradicts the jurisprudence issued by the CJEU in terms of transparency control in the inclusion of abusive clauses in loan contracts signed between financial entities and consumers and users, and even its own relative to other clauses such as those colloquially called “floor clauses”. The Supreme Court understands that it is enough that the IRPH information has been published in the BOE to “save the transparency requirements in terms of composition and calculation”, which are precisely the aspects that require more attention and explanation, since they are matters techniques not accessible to any average consumer, and at the same time the elements that determine that the IRPH is, by nature, substantially more onerous than other more widely used rates, such as the Euribor. If the IRPH were a more expensive index at certain times, due to the variability of interest rates and the logical evolution of the mortgage market, it would not imply any imbalance, as pointed out by the Alto Court, but the problem lies in the fact that this index is always more expensive, due to calculation elements of the index itself, which are alterable by the financial entities themselves (for example, raising the spreads and commissions of new hires), therefore manipulated, and all this is not reported in any case to customers. For all these reasons, there is a significant imbalance, as well as a lack of essential information, which was necessary so that the affected consumers could choose to refer their mortgage loan to the IRPH index with full knowledge of the facts. From Albos Law we will continue to accompany those affected by this index, claiming for it along with other abusive clauses, in order to minimize procedural risks.