According to the Supreme, the transparency of mortgages linked to IRPH should be assessed on a case-by-case basis

The Supreme Court has ruled that there can be no single answer to the transparency of mortgages subject to the IRPH (mortgage loan reference index), since the determination of the existence or otherwise of abuse must be made in accordance with the specific conditions of each contract. 

The IRPH index began to become complicated between 2013 and 2016, when it stabilized at around 2%, while the Euribor - the most widely used index - was falling, even to negative values, which led many users to consider it abusive and start recourse. 

The European justice system previously stated that it is up to the judges of each country to decide whether each case was marketed transparently or abused, but it did not overturn the index itself or declare it illegal. 

Now, by means of two resolutions of 11 November, the Civil Division of the Supreme Court has examined the appropriateness of the clauses establishing interest on loans through this index, while reiterating that the assessment of transparency must be made from the perspective of the ordinary consumer who is "sufficiently clear" to understand the information provided to him. 

The Court considers that the obligation of transparency would in itself be fulfilled by the mere publication of the IRPH State Bulletin, provided that the entity has informed the customer. It adds that the banking entity is not obliged to inform the customer of the calculation formula or historical evolution of the index, provided that such information is available. 

With regard to the abusive natureof the clauses, the Supreme Court recalls that the mere useof an official index which the banking authorities have considered to be good "does not in itself violate good faith"; moreover, it points out that for years this index was considered appropriate for the financing of official housing. 

For all these reasons, the Court has ruled that the appropriateness of these clauses must be considered separately. Magistrados add that the existence of an imbalance to the detriment of the consumer does not depend on the reference index, but on the interest rate resulting from that clause.

The Chamber has concluded that it is incorrect to make a comparison between the amount resulting from applying the agreed differential to the IRPH index and the result of adding the same differential to the Euribor.