The Supreme Court has yet to publish its rulings publicly. A complaint was filed by Arriaga Asociados, a firm focused on banking-type claims, against four judges in the Law Office attributed to them. It centers on alleged prejudice and coercion in applying European jurisprudence to the IRPH mortgage reference index. The Criminal Division suggested the lawyers lacked jurisdiction but reminded them they could refile their request before the appropriate body, specifically the special chamber under Article 61, where Arriaga presented their claims.
A source from Arriaga Asociados told El Periódico de España that the complaint might ultimately be deemed inadmissible by the Supreme Court, potentially ending the matter. The firm continues to push for correct application of European law, noting that both the Constitutional Court and the European Court of Human Rights have engaged with this issue.
In mid-March, Arriaga filed a complaint with the Supreme Court’s Criminal Division against Civil Judges Ignacio Sancho Gargallo, Rafael Sarazá Jimena, Pedro José VeraTorres and Juan María Díaz Fraile, who allegedly issued rulings arguing that the IRPH is unfair. The office maintains that those resolutions rely on broad, bank-friendly arguments rather than consumer-centered considerations.
Shortly after, on March 31, the Chamber led by Manuel Marchena issued an order clarifying that the Criminal Court of the Supreme Court lacks jurisdiction to hear this matter under the Jurisdiction Body Act (LOPJ) 61. The order points to a special chamber under Article 61, designed to handle cases involving presidents of chambers or supreme court judges. The transfer of the case to the relevant body, with the right to be heard, was noted by El Periódico as a procedural move in the face of jurisdictional limits.
Consequently, Arriaga expressed dissatisfaction and on May 6 again filed the complaint with the same magistrates, asking whether Article 61 had been invoked before the Chamber. The magistrate Antonio del Moral was involved in addressing this procedural question. The 61st Chamber is a special court comprising the President of the Supreme Court, Carlos Lesmes, the heads of each chamber, and the most senior magistrates.
The firm’s challenge relates to three late January judgments from the Civil Chamber of the Court of Cassation concerning the supposed invalidity of the IRPH clause in mortgage contracts. The firm argues that the article itself is not transparent and does not mislead consumers since the index is official and public.
The Supreme Court’s decision on applying EU Court of Justice criteria (ABAD) is cited as a turning point. The court reiterated that IRPH is not abusive and clarified that banks are not required to present a brochure detailing the index’s prior evolution to consumers.
index published on BOE
Arriaga Asociados contends that the CJEU requires a case-by-case assessment of IRPH. They argue that consumers should know the true cost of their loan, without relying on the lack of access to historical data from the 2000s. The Supreme Court, however, has relied on the notion that IRPH is published in the BOE and has not delved into an explanation of how the index operates. The firm claims that the Court omits important public information and thereby undermines consumer rights, arguing this stance conflicts with EU expectations.
The firm also contends that only part of the EU judgment is cited, omitting the paragraph that recognizes the bank’s obligation to inform the consumer in person. It asserts that the Court of Cassation, in a February 15 ruling, had already ordered costs against the IRPH due to a lack of “registered interest” in the case, a detail Arriaga highlights to support their stance.
Arriaga’s view is that current guidance in Spain could dissuade consumers from appealing IRPH claims. They accuse the Supreme Court of pressuring consumers not to file or withdraw an appeal to save costs, a charge they consider coercive and contrary to EU law. The firm emphasizes the need for a careful, case-specific examination of each IRPH dispute rather than blanket conclusions.
words of Lenaerts
Sources speak of remarks by Koen Lenaerts, president of the EU Court of Justice, during an event in Madrid. He reportedly stated that member states cannot hold divergent interpretations of EU law, underscoring a push toward harmonization on this issue.
Over time the IRPH matter has remained unsettled. A Palma de Mallorca court later submitted a preliminary ruling to the EU court on April 19, marking the first time a court suggested fair practices in marketing IRPH-related mortgages. This marks a new development in a long sequence of questions surrounding the index.
Another anticipated ruling came from Judge Margarita Isabel Poveda before the EU Court of Justice in Barcelona, adding to a separate line of inquiries raised by the Balearic court. If these actions accumulate, several questions about the mortgage index could be before the European court, keeping the issue alive and subject to EU interpretation.