Post by account_disabled on Feb 15, 2024 7:04:47 GMT
On July 13, 2023, the CJEU issued ruling C-265/22 establishing the relevance of the information contained in Circular 5/94, of the Bank of Spain, when the national judge proceeds to carry out both the transparency trial and the abusiveness trial in cases of the application of IRPH rates .
It follows from the aforementioned ruling that the national judge must verify whether the professional informed the contracting consumer of the existence of the aforementioned circular and its content, if access to said circular, for the consumer, was especially difficult, and if the professional complied with the requirement to incorporate a negative differential in order to prevent, derived from the peculiar method of calculating IRPH rates and the fact that APR rates are used in their determination, the APR of the operation would be above the Market APR.
Furthermore, the CJEU requires the Canada Email List national judge to verify the possibility of an overlap in the payment of some commissions, an overlap derived from the fact that the IRPH rate already constitutes an average APR to which the consumer adds the elements of his own APR.
In relation to the imbalance of benefits to the detriment of the consumer, remember that in a previous ruling, C-421/14 , established that, to determine the existence of said imbalance, the national judge had to compare the method of calculating the IRPH type with the calculation method of other types commonly used in the market for similar amounts and terms, and their respective effective results.
In this new scenario, on July 26, 2023, the. Provincial Court of Palma de Mallorca , Fifth Section, has issued a ruling confirming the lower court ruling and, consequently, also confirming the validity of the clause relating to the IRPH Cajas rate , understanding that STJUE C-265/22 contributes little. in relation to the transparency trial.
Court of Justice of the European Union (Photo Archive)
This is the first ruling by a Spanish court after the aforementioned CJEU ruling, at the expense of knowing any ruling from the Supreme Court which, for the moment, as commented by José María Erausquin , author of several preliminary rulings with Maite Ortiz from Res Abogados, has been inadmissible. all the cassation appeals that are planned “because it is considered that, in all cases, the object of litigation has disappeared.”
For Erausquin, “this ruling confirms that “if the transparency parameters with which the Spanish judges have been carrying out the transparency trial are already sufficient to declare that the clause that incorporates the IRPH Cajas type is deemed to lack transparency, adding new transparency parameters Transparency contributes nothing .”
It follows from the aforementioned ruling that the national judge must verify whether the professional informed the contracting consumer of the existence of the aforementioned circular and its content, if access to said circular, for the consumer, was especially difficult, and if the professional complied with the requirement to incorporate a negative differential in order to prevent, derived from the peculiar method of calculating IRPH rates and the fact that APR rates are used in their determination, the APR of the operation would be above the Market APR.
Furthermore, the CJEU requires the Canada Email List national judge to verify the possibility of an overlap in the payment of some commissions, an overlap derived from the fact that the IRPH rate already constitutes an average APR to which the consumer adds the elements of his own APR.
In relation to the imbalance of benefits to the detriment of the consumer, remember that in a previous ruling, C-421/14 , established that, to determine the existence of said imbalance, the national judge had to compare the method of calculating the IRPH type with the calculation method of other types commonly used in the market for similar amounts and terms, and their respective effective results.
In this new scenario, on July 26, 2023, the. Provincial Court of Palma de Mallorca , Fifth Section, has issued a ruling confirming the lower court ruling and, consequently, also confirming the validity of the clause relating to the IRPH Cajas rate , understanding that STJUE C-265/22 contributes little. in relation to the transparency trial.
Court of Justice of the European Union (Photo Archive)
This is the first ruling by a Spanish court after the aforementioned CJEU ruling, at the expense of knowing any ruling from the Supreme Court which, for the moment, as commented by José María Erausquin , author of several preliminary rulings with Maite Ortiz from Res Abogados, has been inadmissible. all the cassation appeals that are planned “because it is considered that, in all cases, the object of litigation has disappeared.”
For Erausquin, “this ruling confirms that “if the transparency parameters with which the Spanish judges have been carrying out the transparency trial are already sufficient to declare that the clause that incorporates the IRPH Cajas type is deemed to lack transparency, adding new transparency parameters Transparency contributes nothing .”
