A legal battle that has not stopped since 2013
Surrounding controversy Real Estate Loan Reference Index (IRPH) It has established itself as one of the most persistent financial disputes in Spain. Lawyers José María Erosquin and Maite Ortiz, leaders in this matter, confirm that the doctrinal development of the case demonstrates the need for a deep review. Their thesis is based on the fact that the information provided to consumers in the marketing of these mortgages did not adequately reflect the true impact of the index compared to other market alternatives.
The official IRPH was published monthly and promised stability. However, its calculation method included commissions and elements that systematically increased it, generating higher fees than those generated by Euribor. For specialized companies, this effect should have been carefully explained to borrowers, as it is a decisive factor in assessing the financial burden of the loan.
The fact that has reinvigorated the debate: the Supreme Court decision
The point of maximum friction occurred with the recent decision of supreme courtThis sparked a new controversy, considering that the validity of IRPH must be analyzed on a case-by-case basis, without declaring its misuse in general. This position contradicts the expectations that arose after the recent ruling of the Court of Justice of the European Union, which recalled the obligation to verify the transparency of the indicator and the real accessibility of information.
Lawyers assert that the Supreme Court reinterpreted the basic elements of the community doctrine, especially with regard to the presumption of good faith because it is an official indicator. For lawyers, the ECJ was clear in pointing out that the publication of the index in the Bank of England does not absolve entities from explaining its working and comparing it with other similar products available on the market at the time of contracting.
Control of transparency returns to the center of the conflict
One of the most discussed issues revolves around monitoring transparency, which must overcome complex financial provisions. The Supreme Court indicated that a mere reference to Circular No. 5/1994 issued by the Bank of Spain might be sufficient to prove such control, but platforms such as IRPH Stop Gipuzkoa – represented by the above-mentioned lawyers – insist that the said circular was directed at professionals in the sector and was not intelligible to the average consumer.
To assess whether there is an imbalance, the Court of Justice of the European Union proposed comparing the actual cost of IRPH with the usual indices in place during the decade, in particular the Euribor index. Legal experts state that this comparison not only shows significant differences, but in many cases reflects the ongoing economic harm to borrowers.
The role of synthetic indicators in new interpretation
Another controversial point is the use of synthetic indicators to evaluate whether IRPH is more expensive than other options on the market. Lawyers consider that this tool distorts the analysis, because it includes data from outside the mortgage market, such as personal loans, which artificially raises the comparative value. For them, this methodological resource contributes to generating a false perception of the balance between indicators.
This aspect becomes more important when it is taken into account that arbitrariness is not limited only to price, but also to the lack of clear information, the absence of understanding mechanisms, and the unequal contractual position between the entity and the consumer. Therefore, any relevant deviation from prevailing market indices must be subject to strict judicial scrutiny.
The IRPH’s judicial horizon remains open
The possibility of a sixth preliminary question is gaining strength again. Lawyers believe that the Supreme Court’s recent decision could conflict with the European consumer protection system, which justifies a new intervention by the European Court of Justice. If this question is raised, the Community Court will have the opportunity to clarify whether the recent guidelines of the Spanish Supreme Court are compatible with the European regulatory framework.
For the affected platforms, the current situation generates uncertainty for about 1 million mortgages linked to the index. They point out that the banking sector still maintains different positions in litigation, while consumers face long and expensive processes waiting for a unified standard that determines whether items pass transparency controls.
The social and economic impact of the decision
The judicial decision will affect not only the consumers concerned, but also the financial market as a whole. A potential public lack of transparency could force entities to recalculate interest, incur large refunds, or even adjust their future trading standards. This scenario largely explains the sensitivity with which the sector follows every step of the judicial process.
For their part, the lawyers concerned insist that the matter cannot be resolved through interpretive standards that, in their view, reduce consumer protection. They emphasize that clarity of information is the guiding principle for all litigation related to financial products, and that any deviation generates systemic risks for both those affected and confidence in the mortgage market.
In this context, they recall that the doctrine of the ECJ requires a review of all the circumstances of the case, a comparison of available information, alternative scenarios and effective understanding on the part of the borrower. They insist that the controversial decision contradicts that spirit and leaves the paths open to new judicial rulings.