# C_2019423EN.01002301.xml

| 16.12.2019 | EN | Official Journal of the European Union | C 423/23 |
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16.12.2019

EN

Official Journal of the European Union

C 423/23

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Request for a preliminary ruling from the Audiencia Provincial de Alicante (Spain) lodged on 18 September 2019 — Banco Santander, S.A. v VF and WD

(Case C-691/19)

(2019/C 423/29)

Language of the case: Spanish

Referring court

Audiencia Provincial de Alicante

Parties to the main proceedings

Applicant: Banco Santander, S.A.

Defendants: VF and WD

Questions referred

| 1. | Is a judicial interpretation (according to which the repayment of sums unduly paid under a costs clause included in a mortgage loan agreement concluded with a consumer is the effect not of a declaration of invalidity but of an independent action subject to a limitation period) which allows a consumer to be permanently bound by the costs clause, inasmuch as he will not be able to recover those costs if that action has become time-barred, compatible with the principle that unfair terms are not binding, recognised in Article 6(1) of Directive (1) [93/13]? |
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1.

Is a judicial interpretation (according to which the repayment of sums unduly paid under a costs clause included in a mortgage loan agreement concluded with a consumer is the effect not of a declaration of invalidity but of an independent action subject to a limitation period) which allows a consumer to be permanently bound by the costs clause, inasmuch as he will not be able to recover those costs if that action has become time-barred, compatible with the principle that unfair terms are not binding, recognised in Article 6(1) of Directive (1) [93/13]?

| 2. | Is the act of time-barring a claim for the restitution of sums unduly paid pursuant to the application of a clause which has been declared unfair compatible with that principle, inasmuch as it may cause the right to restitution to be lost, notwithstanding the declaration as to the invalidity of that clause? |
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2.

Is the act of time-barring a claim for the restitution of sums unduly paid pursuant to the application of a clause which has been declared unfair compatible with that principle, inasmuch as it may cause the right to restitution to be lost, notwithstanding the declaration as to the invalidity of that clause?

| 3. | If the answer is in the affirmative, is the concept of a ‘reasonable limitation period’ to which the Court of Justice refers to be interpreted within an exclusively national context or, conversely, must reasonableness be subject to some form of requirement aimed at providing a minimum level of protection for borrowers throughout the European Union and ensuring that the substantive content of the right not to be bound by a clause which has been declared unfair is not adversely affected? |
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3.

If the answer is in the affirmative, is the concept of a ‘reasonable limitation period’ to which the Court of Justice refers to be interpreted within an exclusively national context or, conversely, must reasonableness be subject to some form of requirement aimed at providing a minimum level of protection for borrowers throughout the European Union and ensuring that the substantive content of the right not to be bound by a clause which has been declared unfair is not adversely affected?

| 4. | If the view is taken that the reasonableness of the limitation period must be subject to certain minimum preconditions, may reasonableness depend on the point in time at which a national law stipulates that the action may be brought?; is it reasonable for the limitation period to start to run on the date on which the agreement was concluded, or, conversely, does the principle that unfair terms are not binding require a prior or simultaneous declaration as to the invalidity of the costs clause so as to ensure that the borrower has a reasonable period within which to seek the reimbursement of the sums which have been unduly paid? |
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4.

If the view is taken that the reasonableness of the limitation period must be subject to certain minimum preconditions, may reasonableness depend on the point in time at which a national law stipulates that the action may be brought?; is it reasonable for the limitation period to start to run on the date on which the agreement was concluded, or, conversely, does the principle that unfair terms are not binding require a prior or simultaneous declaration as to the invalidity of the costs clause so as to ensure that the borrower has a reasonable period within which to seek the reimbursement of the sums which have been unduly paid?

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(1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

OJ 1993 L 95, p. 29.

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