Query re latest Supreme Court ruling on IRPH mortgage clauses and the impact on know of ECJ rulings

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13 Dec 2020 1:56 PM by ads Star rating. 4087 posts Send private message


I have just seen the following on Spanish Property Insight https://www.spanishpropertyinsight.com/2020/12/10/spanish-supreme-court-twists-interpretation-of-ecjs-ruling-on-irph-mortgage-index-in-favour-of-lenders/?utm_source=mailpoet&utm_medium=email&utm_campaign=2020-12-13 with regard to IRPH mortgage clauses, and am concerned how this will now affect claimants whose legal teams have argued that Banks have acted abusively by not providing sufficient information from the outset.

In that article it identified that the SC had stipulated in this latest ruling that "they will no longer admit more IRPH appeals"!

Does this new ruling by the Supreme Court dated November 12th 2020 therefore now mean that clients will not be allowed to appeal to the SC in future in order to gain further clarification from the SC based upon ECJ rulings?

Does this mean that the SC have effectively blocked any ability for ECJ rulings to be considered going forward in this regard?

Does this now imply that the Spanish SC takes precedence over the ECJ?

Could this be considered a form of protectionist stance in favour of the Spanish Banks on the part of the SC, without allowing the due process of law to follow its full course, which presumably requires that ECJ rulings should be considered and acted upon?

Or does it mean that these ECJ rulings should be brought into the legal arguments from the outset by law firms defending their clients rights? In other words are they suggesting that wherever ECJ rulings apply as protection for clients and have not been brought as evidence to substantiate their claims, that this would be classed as new evidence and therefore not valid?

Do the implications of this  therefore go far wider than just this specific case relating to IRPH clauses, and have implications on all outstanding cases in the Spanish justice system that rely upon protective ECJ rulings?

Does this imply that all Spanish law firms have to be fully aware and competent in ECJ law/ rulings when defending their clients and how they impact the Spanish judicial system?

P.s. apologies the title of this thread should have read as "knowledge" and not " know". 😉


This message was last edited by ads on 13/12/2020.

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18 Feb 2021 11:29 AM by mariadecastro Star rating in Algeciras (Cadiz). 9389 posts Send private message

mariadecastro´s avatar

Hello Ads and all:

Apologies for the delayed response. Answer still relevant in my opinion:

In regards to tgeh IRPH clause, last Supreme Court decission clearly establishes that consumers were not informed in a clear and transparent way, since in the cases tried, no information was provided on the evolution of the IRPH in the two years prior to the date of hiring, which would have revealed that the IRPH has always been above the Euribor.

But the Supreme Court does not appreciate bad faith or imbalance between the parties and that makes the justification for the clause to not be considered as null and void.: acording to the Supreme Court, the lack of transparency is not enough to declare the nullity of a clause, since it is also necessary to assess whether it goes against the requirements of good faith and also causes a significant imbalance to the detriment of the consumer.

This is based on the fact that the offer by the bank of an official index, approved by the banking authority, cannot in itself violate good faith. In addition, it emphasizes that it is an index that is controlled by the public administration, and that it is not justified that it is more easily manipulated than the rest of the official indexes. Something that can be discussed, given the way in which this index was formed in practice.

Last resort is for the ECJ to pass new decissions on this... which I instinctly doubt and if happened, will take a while


Maria L. de Castro, JD, MA


Director www.costaluzlawyers.es

El blog de Maria

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