Pre-closure letter on multiple complaint CPLT(2026)00803 [Date: 1 September 2026]

Notice in English (can be automatically translated)

Pre-closure letter concerning a multiple complaint against the Kingdom of Spain about the alleged infringement of Directive 93/13/EEC on unfair terms in consumer contracts as interpreted by the Court of Justice of the European Union through judgments by Spanish courts related to the Mortgage Loan Reference Index (IRPH), including two judgments of the Spanish Supreme Court of 11 November 2025 

Reference number: CPLT(2026)00803

The European Commission has received a substantial number of complaints about an alleged infringement by the Kingdom of Spain of Council Directive 93/13/EEC on unfair terms in consumer contracts because of rulings by Spanish courts, including two judgments (1) by the Spanish Supreme Court (Tribunal Supremo) of 11 November 2025, on contract terms in mortgage credit contracts with variable interest rates referencing the applicable interest rate to the IRPH.

The Commission has assessed the complaints in light of the applicable European Union law and in line with the enforcement priorities set in the Communication of the European Commission ‘EU law: Better Results through Better Application’ ⁽²⁾ and has come to the conclusion that it would not be appropriate to open infringement proceedings against the Kingdom of Spain under Article 258 of the Treaty on the Functioning of the European Union (TFEU). This assessment is linked to the fact that there is a request pending for a preliminary ruling under Article 267 TFEU from the Tribunal de Instancia de Palma, Sección Civil, Plaza no 15 which was submitted to the Court of Justice of the European Union (CJEU) on 7 April 2026, and which is registered as Case C-297/26. That request for a preliminary ruling concerns specifically the interpretation of Directive 93/13/EEC in relation to the assessment of the transparency and fairness of the kind of contract terms referred to in the complaints and, in that connection, mentions specifically the two rulings of the Spanish Supreme Court of 11 November 2025. 

There is a significant body of CJEU case law on the interpretation of Directive 93/13/EEC, and several rulings from the CJEU deal specifically with questions related to IRPH clauses included in Spanish mortgage credit agreements concluded during certain periods. That case law started with the judgment of 3 March 2020 in Case C-125/18 Gómez del Moral Guasch, which focused on the transparency of such contract terms under Articles 4(2) and 5 of Directive 93/13/EEC. Furthermore, on 17 November 2021, the CJEU handed down two orders in Cases C-655/20 Gómez del Moral Guasch II and C-79/21 Unión de Créditos Inmobiliarios, followed by a judgment of 13 July 2023 in Case C-265/22 Banco Santander and a judgment of 12 December 2024 in Case C-300/23 Kutxabank.

Those rulings provide guidance to national courts for the assessment of whether the transparency requirements stemming from Directive 93/13/EEC have been complied with in individual cases and the assessment of whether a given contract term must be deemed to be unfair or not. At the same time, the CJEU has made it clear that it is for the national courts to assess the transparency and (un)fairness of the contract terms in individual cases, taking into account the principles stemming from Directive 93/13/EEC as interpreted by the CJEU. 

Following the CJEU’s judgment of 12 December 2024 in Case C-300/23 Kutxabank,the Tribunal Supremo, on 11 November 2025, ruled on appeals regarding the (un-)fairness of contract terms referencing the variable interest rate to the IRPH in two specific mortgage credit agreements, covering in one of the rulings also questions related to the applicable transparency requirements. The complaints registered under CPLT(2026)00803 disagree with those rulings and consider them not to be compatible with Directive 93/13/EEC as interpreted by the CJEU. Some of the complaints also have misgivings about rulings from lower instance court with regard to the assessment of such contract terms.

In the Communication of the European Commission ‘EU law: Better Results through Better Application’, the Commission states that, where preliminary ruling proceedings under Article 267 TFEU are pending on the matter in question and the action that the Commission maytake would not allow speeding up the resolution of the case significantly, the Commission will not, in principle, consider it appropriate to open infringement proceedings against the Member State concerned in accordance with Article 258 TFEU. (3)

The questions which a Spanish court referred to the CJEU in Case C-297/26 seek to obtain further clarity on the applicable criteria for the assessment of the transparency and unfairness of IRPH clauses in mortgage credit contracts. At the same time, the order for reference in Case C-297/26 explicitly refers to the relevant rulings from the Tribunal Supremo which are criticised in many complaints. This means that, as a result of this request for a preliminary ruling, questions that would be relevant for the assessment of CPLT(2026)00803 by the Commission, have already been submitted to the CJEU. Moreover, following the CJEU’s ruling in Case C-297/26, national courts will be obliged to take into account that ruling when dealing with individual cases involving an IRPH clause. Therefore, the Commission does not consider that the opening of infringement proceedings at this stage would allow for a speedier solution in this matter. 

If, after the CJEU has handed down its ruling in the abovementioned case, there were to be sufficient evidence that the judicial practice of the courts of a Member State reflect a general and persistent failure to comply with EU law, the Commission may open infringement proceedings in accordance with Article 258 TFEU against the Member State concerned. 

It must be pointed out that the Commission does not have the power to resolve individual disputes between traders and consumers and that it cannot revise decisions by national courts in individual cases by way of infringement proceedings under Article 258 TFEU. Insofar as court decisions complained of have become final (‘res judicata’) under domestic rules of procedure, the CJEU has established that EU law does not, in principle, require a national court to disapply those rules of procedure, even if to do so would make it possible to remedy an infringement of a provision, regardless of its nature, contained in Directive 93/13/EEC (Joined Cases C-154/15, C-307/15 and C-308/15 Gutiérrez Naranjo, paragraph 68, Joined Cases C-537/12 and C-116/13 Banco Popular Español and Banco de Valencia, paragraph 60, and Case C-169/14 Sánchez Morcillo and Abril García, paragraph 28). 

In order to obtain redress, including compensation if warranted, consumers must take action at national level in the Member State concerned. Submitting a complaint to the Commission does not suspend the time limits for remedies under national law. 

In light of those considerations, the Commission intends to close complaint CPLT(2026)00803. This is without prejudice to possible follow-up actions after the CJEU has handed down its ruling in Case C-297/26. If complainants have additional information that warrants a different assessment, they may submit such information to the Commission within four weeks of the publication of this communication on this website. Such additional information can be sent to JUST-B2ec [dot] europa [dot] eu (JUST-B2[at]ec[dot]europa[dot]eu), referring to CPLT(2026)00803.

If no new information is received within four weeks, or if any new information received does not lead to a different conclusion, the Commission may close the case. Closure of this complaint will be communicated on this dedicated website. 

1. Tribunal Supremo, Sala de lo Civil, Resoluciones N°1590/2025 and 1591/2025.
2. C(2016)8600, OJ C 18, 19.1.2017, pp. 10–20.
3. OJ 19.1.2017 C18/10 (C18/15).