The Supreme Court has collected information from the EU Court of Justice ”(CJEU) on the preliminary ruling 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 Supreme Court points out that when it has the exact information about the admission for processing, “it will adopt the appropriate decision”, which includes the suspension of all ongoing procedures until further clarification is obtained 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 , may only be adopted when this court has evidence that the CJEU has addressed the matter Preliminary ruling to which said letter refers, by means of a decision or action that implies that the procedure provided for in article 53.2 of the Rules of Procedure of the Court of Justice has passed. providence. That is, if the question raised by the Barcelona court has been administered.
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 beyond that first procedure.
Second issue of Barcelona 38
The head of the 38th Court of Barcelona, Francisco González de Audicana , launched a new preliminary ruling to the CJEU to make it more precise in its interpretation of the use of the IRPH index in mortgages .
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 rulings of the Supreme Court ” , which appreciated a lack of transparency but not ‘abusiveness’ in several IRPH clauses analyzed.
In addition, the CJEU admitted for processing a new preliminary ruling on the IRPH raised by the titular magistrate of the Court of Instruction number 2 of Ibiza , Carmen Robles Zamora, although it is not considered to be the Supreme Court’s ruling this Friday .
The magistrate submitted to the European court a total of 16 preliminary questions on the interpretation of articles 3, 4, 5, 6 and 7 on Directive 93/12 EEC of the Council, of April 5, on abusive clauses in contracts concluded with consumers, and it suspended the procedure that was being tried until the resolution of these questions raised to the Luxembourg court.
For its part, the association of banking users, Asufín, filed a complaint with the European Commission in January against the Supreme Court for the repeated and systematic violation of European directives and treaties on consumer protection, emphasizing the contradictory interpretation that it makes in the matter of 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: “We value very positively the caution of the Supreme Court and we hope that it will maintain it, since, as the European Commission has responded to Asufin’s complaint, they are very aware of the processing of the two preliminary questions raised. ”.
For many lawyers, the state may be forced to respond patrimonially to a large number of complaints from those affected by mortgages indexed to the IRPH following the decision of the Supreme Court of not to admit the issues that index following the judgments October in which he tried to establish jurisprudence.
After that resolution, the Spanish high court has not waited to reject cases for the CJEU to 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 may be sued for a malfunction of the Administration of justice and the responsibility for compensation would fall on the State.