Information;Order — ECLI:EU:C:2025:289
Date: 2025-04-28
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Right of establishment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Translation C-46/24 – 1 
Case C-46/24 
Request for a preliminary ruling 
Date lodged: 
23 January 2024 
Referring court: 
Juzgado de lo Mercantil n.º 19 de Madrid (Spain) 
Date of the decision to refer: 
4 September 2023 
Applicant: 
RB 
Defendant: 
Ayuntamiento de Humanes de Madrid 
  
JUZGADO DE LO MERCANTIL N.º 19 DE MADRID (Commercial Court 
No 19, Madrid, Spain) 
[…] [Address of the referring court] […] 
Proceedings: Insolvency  
[…] 
O R D E R 
[…] [Details of the insolvency proceedings and of the parties and their 
representatives] 
Place: Madrid 
Date: 4 September 2023 
EN 
REQUEST FOR A PRELIMINARY RULING OF 4.9.2023 – CASE C-46/24 
 
2  
 I – FACTS. 
ONE. The insolvency proceedings giving rise to the request for a preliminary 
ruling. Relevant background. 
1 On 13 March 2023, RB’s procedural representative submitted an application for a 
declaration of insolvency, announcing his intention to request a discharge of the 
unsatisfied liabilities. The list of creditors included a claim by the 
AYUNTAMIENTO DE HUMANES (the correct name of the locality in question 
is Humanes de Madrid) (‘Humanes de Madrid Municipal Council’), for the sum of 
EUR 512.38. 
2 Having requested certain documentation from the applicant, an order was made on 
17 May 2023, declaring the insolvency, and his creditors were notified, so that 
they could request the appointment of an insolvency practitioner. 
3 The period of time granted to the creditors to request that appointment having 
elapsed without any of them doing so, the insolvent [(the applicant)] submitted a 
document requesting a discharge of the unsatisfied liabilities, stating that that 
discharge should extend to the entirety of the unpaid debts, including the claim by 
Humanes de Madrid Municipal Council. 
4 By means of a procedural order of 14 July 2023, it was decided to notify the 
parties and the Ministerio Fiscal (public prosecution service) [of the insolvent’s 
request], so that they could make whatever submissions they considered pertinent 
regarding the appropriateness of requesting a preliminary ruling from the Court of 
Justice of the European Union. 
5 The insolvent submitted a document in which he argued that it was not 
appropriate to request a preliminary ruling, because: i) he was abandoning his 
request for a discharge of the above-mentioned debt relating to the claim governed 
by public law; ii) given the amount of that claim, it would be below the limit up to 
which such debts may be discharged under Article 489(1)(5) of the Texto 
Refundido de la Ley Concursal (Recast Text of the Insolvency Law: TRLC). 
No other submission has been made regarding the matter and no decision on the 
matter has yet been given. 
II – LAW. 
PRELIMINARY CONSIDERATIONS. The objections raised by the 
insolvent do not prevent the preliminary ruling being requested. 
6 None of the objections raised by the insolvent should prevent the preliminary 
ruling from being requested, as it relates to matters which have to be settled when 
a decision is given regarding the granting of a discharge. Furthermore: 
RB 
 
3 
1 It does not seem admissible for an insolvent to waive his or her right to a 
discharge of a debt which could be dischargeable (the question of a debtor 
waiving his or her right to a discharge of debt being entirely unprecedented), since 
it would be contrary to the essence of the practice and it would contradict the 
literal meaning of Article 489(1) TRLC, which mandates that ‘the discharge of the 
unsatisfied liabilities shall extend to all unpaid debts, with the exception of the 
following: […]’. The scope of the discharge is determined by law and does not 
seem to be subject to the dispositive principle [whereby the parties have the right 
to delimit the subject matter of an action]; although, clearly, once the debt has 
been discharged, the insolvent could pay it, if that were in his or her interest. 
2 In the absence of more extensive statements and evidence (nothing has been 
mentioned, for example, regarding the origin of the claim by that municipal 
council), there is nothing to show that the debt to Humanes de Madrid Municipal 
Council is among those debts for which the management of recovery falls within 
the competence of the Agencia Estatal de Administración Tributaria (National 
Agency for Tax Administration, Spain), which is the sole case in which the limit 
under Article 489(1) TRLC applies. 
ONE. European Union law and Spanish law. 
Directive (EU) 2019/1023 of the European Parliament and of the Council of 
20 June 2019 on preventive restructuring frameworks, on discharge of debt and 
disqualifications, and on measures to increase the efficiency of procedures 
concerning restructuring, insolvency and discharge of debt, and amending 
Directive (EU) 2017/1132 (‘the Directive’), published on 26 June 2019 and which 
entered into force on 16 July 2019, contains various points of interest for the 
purposes of this decision. 
The Directive aims to ensure that honest insolvent or over-indebted entrepreneurs 
can benefit from a full discharge of debt after a reasonable period of time, thereby 
allowing them a second chance (recital 1). 
Where there is a duly justified reason under national law, it could be appropriate 
to limit the possibility of discharge for certain categories of debt. It should be 
possible for Member States to exclude secured debts from eligibility for discharge 
only up to the value of the collateral as determined by national law, while the rest 
of the debt should be treated as unsecured debt. Member States should be able to 
exclude further categories of debt when duly justified (recital 81). 
Recitals 78 and 82 use the expression ‘full discharge of debt’. 
Article 2(1)(10) defines ‘full discharge of debt’ to mean that enforcement against 
entrepreneurs of their outstanding dischargeable debts is precluded or that 
outstanding dischargeable debts as such are cancelled, as part of a procedure 
which could include a realisation of assets or a repayment plan or both. 
REQUEST FOR A PRELIMINARY RULING OF 4.9.2023 – CASE C-46/24 
 
4  
Article 20(1) ‘Access to discharge’, provides: ‘1. Member States shall ensure that 
insolvent entrepreneurs have access to at least one procedure that can lead to a 
full discharge of debt in accordance with this Directive.’ 
Article 23(4) (located in Title III, ‘Discharge of debt and disqualifications’) 
provides for ‘Derogations’ and states: ‘4. Member States may exclude specific 
categories of debt from discharge of debt, or restrict access to discharge of debt 
or lay down a longer discharge period where such exclusions, restrictions or 
longer periods are duly justified, such as in the case of: 
(a) secured debts; 
(b) debts arising from or in connection with criminal penalties; 
(c) debts arising from tortious liability; 
(d) debts regarding maintenance obligations arising from a family relationship, 
parentage, marriage or affinity; 
(e) debts incurred after the application for or opening of the procedure leading 
to a discharge of debt; and 
(f) debts arising from the obligation to pay the cost of the procedure leading to 
a discharge of debt.’ 
The corrigendum to the Directive [which did not concern the English version], 
published in the Official Journal of the European Union, No 43, of 24 February 
2022, provides that, in Article 23(4), where it states [in Spanish]: 
‘4. Member States may exclude specific categories of debt from discharge of 
debt, or restrict access to discharge of debt or lay down a longer discharge period 
where such exclusions, restrictions or longer periods are duly justified, in the case 
of’, 
it should read: 
‘4. Member States may exclude specific categories of debt from discharge of 
debt, or restrict access to discharge of debt or lay down a longer discharge period 
where such exclusions, restrictions or longer periods are duly justified, such as in 
the case of:[…]’ 
Directive 2019/1023 was transposed into Spanish national law by means of Ley 
16/2022, de 5 de septiembre, de reforma del texto refundido de la Ley Concursal, 
aprobado por el Real Decreto Legislativo 1/2020, de 5 de mayo (Law 16/2022 of 
5 September, reforming the recast text of the Insolvency Law, approved by Royal 
Legislative Decree 1/2020 of 5 May), published in BOE (Official State Gazette) 
No 214, of 6 September 2022, and which entered into force on 26 September 
2022. 
RB 
 
5 
For the present purposes, the following passages from that law are worth 
emphasising: 
Preamble, paragraph I: ‘The purpose of this law is to introduce the legislative 
reforms necessary for the transposition into Spanish law of Directive 2019/1023 
of the European Parliament and of the Council of 20 June 2019.’ 
Preamble, paragraph IV: ‘Although the Directive does not require it, it does advise 
that the rules relating to the discharge of debt should also extend to natural 
persons whose debts do not come from business activities (consumers) and, 
indeed, under this law, that is the case. 
Directive 2019/1023 requires all Member States to introduce a second chance 
mechanism to prevent debtors from being tempted to relocate to other countries 
which already provide for such mechanisms, with the cost that that would entail 
for both the debtor and his or her creditors. At the same time, standardisation in 
this area is considered essential for the operation of the single European market. 
Two methods are being put in place for the discharge of debt: discharge with 
liquidation of assets and discharge subject to a payment plan. 
The discharge of debt shall apply to all claims under insolvency proceedings and 
claims against assets. Exceptions shall be based, in certain cases, on the 
particular importance attached to them being paid in a just and cohesive society 
based on the rule of law (such as maintenance debts, debts governed by public 
law, debts arising from criminal offences or debts arising from tortious liability). 
Thus, the discharge of debt in respect of claims governed by public law is subject 
to certain limits and can only take place at the time of the initial discharge of 
debt, and not at the time of subsequent discharges. In other cases, the exception is 
justified on the basis of the synergies or negative externalities which may arise 
from the discharge of certain types of debts: the discharge of debts in respect of 
court costs or expenses arising from the discharge proceedings themselves could 
disincentivise certain third parties (for example, lawyers) from working with the 
debtor to achieve that objective, which could adversely affect the insolvent’s 
ability to access the procedure. Similarly, the discharge of debts secured with 
collateral would, without any basis whatsoever, undermine one of the essential 
elements of access to credit and, with it, the correct functioning of modern 
economies, namely the immunity of a creditor benefiting from a strong security 
interest to the vicissitudes of insolvency or non-compliance on the part of the 
debtor.’ 
Falling within a subsection regulating ‘the common elements of discharge’, 
Article 489(1)(5) [TRLC], under the heading ‘Scope of the discharge’, provides: 
‘1. The discharge of the unsatisfied liabilities shall extend to all unpaid debts, 
with the exception of the following: 
5. Debts relating to claims governed by public law. However, debts for which 
the management of recovery falls within the competence of the National Agency 
REQUEST FOR A PRELIMINARY RULING OF 4.9.2023 – CASE C-46/24 
 
6  
for Tax Administration may be discharged up to the maximum amount of 
EUR 10 000 per debtor; for the first EUR 5 000 of debt, a full discharge shall be 
granted and, from that amount and above, the discharge shall be 50% of the debt 
up to the maximum indicated. Similarly, social security debts may be discharged 
in respect of the same amount and under the same conditions. The amount 
discharged, up to the above-mentioned ceiling, shall be applied in reverse order 
to the order of priority legally established by this law and, within each class, in 
accordance with seniority.’ 
The scope of the discharge is, therefore, regulated for both legally established 
methods [for the discharge of debt]: by means of a repayment plan and with the 
liquidation of assets. In both cases, the claim governed by public law would be 
excluded from the discharge, with the limit established in Article 489(1)(5) 
[TRLC]. 
TWO. Questions referred for a preliminary ruling by other Spanish and 
courts in the European Union: differences with those forming the subject 
matter of this decision. 
There are four [relevant] cases in which questions have been referred to the Court 
of Justice for a preliminary ruling, but where the questions referred differ from 
those forming the subject matter of this decision. 
Section eight of the Audiencia Provincial de Alicante (Provincial Court, Alicante, 
Spain) has referred questions by means of two decisions: orders of 11 October 
2022 (Case C-687/22) and of 31 January 2023, which are substantially similar and 
concern the compatibility of the TRLC – as worded prior to the transposition of 
the Directive – with the Directive. The questions now being referred relate to the 
current text of the TRLC (following the transposition of the Directive by means of 
Law 16/22) which, in contrast to the earlier situation (in which no justification 
whatsoever was given for the discharge of claims governed by public law), does 
appear to include such a justification, given in the preamble to that law. 
The Juzgado de lo Mercantil n.º 1 de Alicante (Commercial Court No 1, Alicante, 
Spain) has, by an order of 25 April 2023 (C-289/23) referred for a preliminary 
ruling questions which are neither the same as, nor comparable to, those referred 
in this order. 
The Juzgado de lo Mercantil n.º 10 de Barcelona (Commercial Court No 10, 
Barcelona, Spain) has, by an order of 2 May 2023, referred questions to the Court 
of Justice for a preliminary ruling, but those questions are not similar to the 
questions in this case either. 
The Tribunal da Relaçao do Porto (Court of Appeal, Porto, Portugal) has, by a 
decision of 16 January 2023 (Case C-20/23), referred various questions for a 
preliminary ruling, but those questions to not relate to the adequacy of the 
justification given by the Spanish legislature for the discharge of claims governed 
by public law. 
RB 
 
7 
THREE. Doubts with regard to interpretation forming the basis of the 
request for a preliminary ruling. 
As has already been mentioned, the legislation applicable to the case is the Recast 
Text of the Insolvency Law (approved by Royal Legislative Decree 1/2020 of 
5 May), as worded pursuant to Law 16/2022 of 5 September, reforming that recast 
text for the purposes of the transposition of Directive 2019/1023. 
In the text currently in force, debts relating to claims governed by public law 
(Article 489(1)(5) TRLC) are excluded from the discharge, albeit with a limit up 
to which they may be discharged in the case of certain types of such claims. 
I have various doubts regarding the compatibility with the Directive of the 
Spanish rules excluding debts relating to claims governed by public law from the 
discharge, as regards the justification offered by the Spanish legislature for that. 
Those doubts have legal relevance and the decision given in the present case will 
depend on the interpretation adopted: whether the insolvent’s debt in respect of 
the claim by Humanes de Madrid Municipal Council, which is a claim governed 
by public law, must be discharged or not. 
As I have said, the doubts I have relate to whether the exclusion of such debts 
from the discharge is or is not duly justified in Spanish law. 
It has already been mentioned that Article 23(4) of the Directive (located in Title 
III, ‘Discharge of debt and disqualifications’) provides for ‘Derogations’ from 
[the provisions on] discharge, from which it may be inferred that the general rule 
followed by the Directive is ‘a full discharge of debt’ (Article 20(1)), although 
there may be exceptions to that, as set out in Article 23. 
Article 23(4) offers the Member States the possibility (‘[Member States] may’), 
when transposing the Directive into national law, of excluding some specific 
categories from discharge of debt. In the case of Spain, as far as the present case is 
concerned, the decision was taken to transpose the Directive by excluding (with a 
limit) debts relating to claims governed by public law from the discharge. 
However, that possibility of exclusion is subject to a prerequisite: ‘where such 
exclusions … are duly justified’. The need for due justification also appears in 
recital 81 of the Directive: ‘Where there is a duly justified reason under national 
law, it could be appropriate to limit the possibility of discharge for certain 
categories of debt. It should be possible for Member States to exclude secured 
debts from eligibility for discharge only up to the value of the collateral as 
determined by national law, while the rest of the debt should be treated as 
unsecured debt. Member States should be able to exclude further categories of 
debt when duly justified.’ 
From the above, I understand that, in order to comply with the Directive, the 
exclusion of debts governed by public law from the discharge must not only be 
justified, but it must, in addition, be duly justified. 
REQUEST FOR A PRELIMINARY RULING OF 4.9.2023 – CASE C-46/24 
 
8  
An initial question arises for me: must the due justification of the exclusion of 
such debts be due in accordance with national law (as stated in recital 81) or may 
it be due according to other, non-legal, criteria, such as, for example, political 
criteria or criteria relating to collection? It should be borne in mind that the 
justification given in the case of Spain for the exclusion of such debts does not 
refer to a single rule or provision of national law. Does such an explanation satisfy 
the due justification requirement? 
The law transposing the Directive, Law 16/22, appears to offer a justification in its 
preamble, when it states: ‘Exceptions shall be based, in certain cases, on the 
particular importance attached to them being paid in a just and cohesive society 
based on the rule of law (such as maintenance debts, debts governed by public 
law, debts arising from criminal offences or debts arising from tortious liability).’ 
That is to say, the justification for excluding debts relating to claims governed by 
public law from the discharge lies in the fact that payment of those debts by the 
insolvent is particularly important in a just and cohesive society based on the rule 
of law. 
I wonder whether or not that phrase, which could be branded laconic, ambiguous 
and hollow, constitutes due justification for the exclusion of that category of debts 
and whether such a justification may be considered to be based on Spanish 
national law. 
It is striking to me, first of all, that the justification offered is identical for very 
disparate categories of debts: it is the same for debts relating to claims governed 
by public law, maintenance debts, debts arising from criminal offences or debts 
arising from tortious liability. 
That raises other questions for me: Must the due justification be concrete and 
specific to each category of debts or may it be generic, even where the debts are 
very different in nature? Is a justification which excludes a debt relating to a claim 
governed by public law a due justification, when it is exactly the same 
justification which excludes a debt relating to a criminal offence? 
Because, I reiterate, the exclusion of debts relating to criminal offences seems to 
find clear justification in the need to repair the damage caused to the victims and 
in not revictimising them by forgiving the criminals the debt; the exclusion of 
debts relating to maintenance finds its justification in the need for support, usually 
within the family context; and the exclusion of debts relating to tortious liability 
also finds its justification in compensating for damage caused culpably. 
But debts governed by public law very often arise without the need for any 
element of culpability on the part of the debtor. 
Consequently, I doubt that a justification which places the debtor in the case of a 
claim governed by public law on an equal footing with the debtor in relation to a 
criminal office, such as an offence against the person, a terrorism offence or a 
RB 
 
9 
sexual assault, could be a due justification. A tax debtor is not the same (and, 
therefore, I believe the justification should be different) as a debtor in relation to a 
homicide. Therefore, the justification for excluding debts relating to claims 
governed by public law from the discharge should, if possible, be more 
substantial. 
Furthermore, as mentioned previously, the short phrase which appears to 
constitute the sole justification is, in my opinion, to a large degree ambiguous, 
generic and hollow. 
Since, is it necessary to say that Spanish society is based on the rule of law? Is 
that not an obvious fact? Can a due justification be based on self-evident truths? 
Another part of the justification is that the payment of debts relating to claims 
governed by public law is particularly important for a just and cohesive society. 
But a just and cohesive society may also allow an honest debtor to be discharged 
from payment of debts relating to claims governed by public law. It should be 
borne in mind that the discharge is granted to an honest debtor who has either had 
all of his or her assets liquidated or has agreed to a repayment plan. Does 
requiring an honest debtor, all of whose assets have been liquidated, to pay debts 
relating to claims governed by public law really constitute a second chance? 
Maintaining that such debts must be paid, without due justification, would lead to 
ostracism and social exclusion for a large proportion of honest debtors and would 
lead them into the black economy; they would be prevented from, or have 
difficulty in, accessing loans, subsidies and public incentives, as the debt relating 
to claims governed by public law would hang like a millstone around their neck. 
They would not be in a position to create employment and they could be 
consigned, for life, I repeat, to a situation of financial, fiscal and legal exclusion. 
The discharge of that category of debts could, then, be of particular importance for 
a just and cohesive society, based on the rule of law, in so far as it would avoid 
situations such as those mentioned. 
For the present purposes, does a justification which, without changing a single 
word, would have no problem in allowing the opposite outcome constitute a due 
justification? 
FOUR. Questions to be referred to the Court of Justice for a preliminary 
ruling. 
It is on the basis of the doubts with regard to interpretation set out above that I 
have decided to refer the following questions to the Court of Justice for a 
preliminary ruling: 
[…] [The five questions referred, which appear, with identical wording, in the 
operative part of this order, are also stated here] 
FIVE. EXPEDITED PROCEDURE. 
REQUEST FOR A PRELIMINARY RULING OF 4.9.2023 – CASE C-46/24 
 
10  
Article 105(1) of the Rules of Procedure of the Court of Justice provides that, at 
the request of the referring court or tribunal or, exceptionally, of his own motion, 
the President of the Court may, ‘where the nature of the case requires that it be 
dealt with within a short time … decide that a reference for a preliminary ruling is 
to be determined pursuant to an expedited procedure derogating from the 
provisions of these Rules.’ 
This court is of the view that the present question merits being dealt with under 
the expedited procedure, in view of the number of individuals potentially 
concerned. The economic crisis which Spain is experiencing has given rise to a 
very large number of insolvency proceedings involving natural persons, whether 
entrepreneurs or otherwise, who have an understandable interest in those 
proceedings concluding in the discharge of the unpaid debts. The number of 
applications for a discharge of unsatisfied liabilities submitted under the current 
legislation is very high. 
Resolving expeditiously the doubts with regard to interpretation expressed by this 
court would allow a very large number of disputes with the same subject matter, 
arising throughout Spain, to be decided correctly and speedily. 
Having regard to the articles mentioned and others of general and particular 
application […] [procedural formulae] 
OPERATIVE PART 
THE COURT DECIDES to refer the following questions to the Court of Justice of 
the European Union for a preliminary ruling: 
i) Does the following justification for excluding debts relating to claims 
governed by public law, offered in the preamble to Law 16/22, transposing 
[Directive 2019/1023 of the European Parliament and of the Council of 20 June 
2019, on preventive restructuring frameworks, on discharge of debt and 
disqualifications, and on measures to increase the efficiency of procedures 
concerning restructuring, insolvency and discharge of debt, and amending 
Directive (EU) 2017/1132] into Spanish law and reforming the Recast Text of the 
Insolvency Law, comply with the due justification requirement, arising from 
Article 23(4) and recital 81 of that directive, which is to be implemented in 
accordance with national law: ‘Exceptions shall be based, in certain cases, on the 
particular importance attached to them being paid in a just and cohesive society 
based on the rule of law (such as maintenance debts, debts governed by public 
law, debts arising from criminal offences or debts arising from tortious liability)’? 
ii) Must the due justification referred to in Article 23(4) of [Directive 
2019/1023] be due in accordance with national law, as stated in recital 81, or may 
it be due according to other, non-legal, criteria? Where applicable, what criteria or 
parameters may be used? Does the absence of references to legal rules or 
provisions in the justification prevent the due justification being regarded as being 
in accordance with national law? 
RB 
 
11 
iii) Must the due justification for excluding debts relating to claims governed by 
public law from the discharge be concrete and specific to that category of debts or 
may it be the same as for other categories of debts which are very different in 
nature, such as those arising from criminal offences, from tortious liability or from 
maintenance? Does the fact that the justification is identical for debts which are 
very different in nature prevent it being regarded as due? 
iv) Is a justification which would equally allow debts relating to claims 
governed by public law to be excluded or not excluded from the discharge a due 
justification? Does a due justification composed of obvious and generic 
explanations satisfy the requirement of the directive? 
v) Does the absence or inadequacy of the justification compromise the 
achievement of the Directive’s objective, namely that an honest debtor should 
obtain a full discharge of debt? 
The proceedings are stayed until the Court of Justice has given its response to the 
questions referred. 
The Court of Justice of the European Union is requested to deal with this request 
for a preliminary ruling under the expedited procedure. 
[…][Closing procedural formulae and signatures][…]