The Supreme Court asks the CJEU to clarify whether it has admitted new questions about the IRPH

  • The high court wants to have proof of admission for processing of the second clarification raised by a judge from Barcelona

  • He affirms that if this is the case, he will adopt the appropriate decision, which may involve the cessation of ongoing procedures

The Supreme court “Has obtained information from the Court of Justice of the EU” (CJEU) on the Preliminary question raised by the 38th court of Barcelona, with doubts about the IRPH, as indicated by the high court in a ruling released this Friday. The court indicates that when it has the exact information about the admission for processing, “it will adopt the appropriate decision”, which includes the cessation of all ongoing procedures until further clarification from Luxembourg.

“Considering the content of the brief presented by the appellant, the decision on the suspension or continuation of the processing of the appeal, in this admission phase, can only be adopted when this court has evidence that the CJEU has addressed the preliminary ruling to which said letter refers, by means of a decision or action that implies that after the procedure provided for in art. 53.2 of the Rules of Procedure of the Court of Justice. That is, if the issue raised by the Barcelona court has been processed. To this end, information has been collected from the Court of Justice “, states the order.

The High Court reasons that “the simple registration of the matter, with the assignment of the corresponding number, does not presuppose the overcoming of this procedure.” However, it seems that the CJEU has gone further.

Second issue of Barcelona 38

The holder of the Court 38 of Barcelona, ​​Francisco González de Audicana, launched a new preliminary question to the Court of Justice of the European Union (CJEU) to be more precise in your interpretation of the use of the index IRPH on mortgagess. This is the same judge who raised the IRPH matter to Europe in February 2018. In December 2020, Audicana submitted a new request for preliminary rulings to the CJEU, requesting more information regarding the “different interpretations” of the different national courts and the ” recent judgments of the Supreme Court “, which appreciated a lack of transparency but not ‘abusiveness’ in several IRPH clauses analyzed.

Besides Eel TWO admitted for processing a new question for a preliminary ruling on the IRPH mortgage index raised by the titular magistrate of the Court of Instruction number 2 of Ibiza, Carmen Robles Zamora, although it is I don’t know consider the providence of the Supreme. The magistrate presented the European court with a total of 16 preliminary questions of interpretation of articles 3, 4, 5, 6 and 7 on Council Directive 93/12 EEC, of ​​April 5, on abusive clauses in contracts concluded with consumers, and suspended the procedure that was judged until the resolution of these raised questions to the court of Luxembourg.

User complaint

For its part, the association of banking users, Asufín, submitted in January to the European Commission a complaint against the Supreme Court for the repeated and systematic violation of European directives and treaties on consumer protection, emphasizing the contradictory interpretation it makes regarding IRPH.

In it, the European institutions were urged to carry out “the appropriate inquiries and, where appropriate, open infringement proceedings” in order to guarantee that Union law is correctly applied in our country. The provisional response of the European Commission has consisted in waiting for the CJEU to resolve the two pending preliminary questions.

Patricia Suárez, president of Asufin, has declared that “we value very positively the caution of the Supreme Court and we hope that it maintains it, since, as the European Commission has responded to the Asufin complaint, they are very awaiting the processing of the two preliminary rulings raised”.

It may interest you

For many jurists, the Status can be seen obliged to respond patrimonially in the face of a large number of complaints by the affected with mortgages referenced to IRPH as a consequence of the Supreme Court decision of not admitting the matters related to that index for processing after the October judgments in which it tried to establish jurisprudence. After that resolution, the Spanish high court has not waited to reject cases that the TWO clarify new preliminary questions raised by the two Spanish judges on the transparency of the index. If the CJEU defines that the lack of transparency determines the abusiveness of the index, the Civil Chamber of the Supreme Court It can be sued for the malfunction of the Administration of justice and the responsibility for compensation would fall on the State.

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