Judgment;Summary — ECLI:EU:C:2024:360
Date: 2024-04-25
Language of the case: Spanish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary proceedings 181/2021 
ORDER 
[…] 
Barcelona, 22 July 2021 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22.7.2021 – CASE C-484/21 
 
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FACTS 
1 On 23 February 2021, […] F C C and M Á B lodged a claim against the 
commercial company BANKIA, S. A. In the claim they stated that on 2 May 2019 
the Court of First Instance No 50, Barcelona had ruled that the costs clause in the 
mortgage contract between the parties was void and had ordered the defendant to 
pay EUR 272.83 in notarial fees. In the present claim the applicants were now 
seeking reimbursement of the registry and agent’s fees, also paid pursuant to the 
term that had been declared void, in the sum of EUR 295.36. 
2 Notice of the claim was served on the defendant bank, which filed a defence 
contesting the claim; with regard to the matters at issue here, it argued that the 
action for those costs was time-barred because the mortgage had been signed in 
2007 and, under Article 121(20) of the Código Civil de Cataluña (Catalan Civil 
Code), the limitation period for bringing claims is 10 years. In its view, the 
limitation period must begin to run on the signing of the mortgage, which is when 
the costs now being claimed had been paid. 
3 […] [Procedural formalities] 
4 In view of the contradictory case-law from the Spanish courts concerning the 
interpretation of Directive 13/93 as regards the point at which the limitation period 
must begin to run, and as this court is the court of last instance, notice was served 
on the parties to enable them to submit observations on a possible reference for a 
preliminary ruling on the matter. 
5 [The applicants] submitted written observations in which they stated that their 
understanding was that the limitation period must be considered to begin to run 
from the point when the term was declared void rather than from when the costs 
were paid, as seemed to be the import of the judgment of the Court of Justice of 
the European Union of 22 April 2021 and was the view taken by the European 
Commission in its written observations of 29 August 2019. They added that the 
judgment of the Court of Justice of 10 June 2021 (C-776/19) had already stated 
that the limitation period could not begin on the signing of the contract. 
Nevertheless, they acknowledged that certain Audiencias Provinciales (Provincial 
Courts), including the Provincial Court of Barcelona, had ruled differently, and 
they therefore considered that it was appropriate to make a reference to the Court 
of Justice setting out questions on which a ruling from it was needed in order to 
clarify the application of the principle of the effectiveness of EU law in that area. 
6 The bank did not submit any observations within the time allowed. 
BANKIA 
 
3 
LEGAL BASES 
SUBJECT MATTER OF THE DISPUTE AND CONNECTION WITH EU LAW 
7 The crux of the dispute is whether the applicants, who are consumers who entered 
into a contract with a bank, can be deprived of the opportunity to claim the sums 
arising from an unfair term because the limitation period governing their action 
begins to run before the term is declared void. 
8 This question is related to the law of the European Union, which has made 
consumer protection a matter of EU public policy and, amongst other legislation, 
has introduced Directive 13/93, whose purpose is to approximate the laws, 
regulations and administrative provisions of the Member States on contracts 
concluded between a seller or supplier and a consumer, such as the present 
contract. 
APPLICABLE NATIONAL LAW AND NATIONAL CASE-LAW 
INTERPRETING IT  
9 Article 121(20) of the Catalan Civil Code (‘CcCat’), which provides: 
‘Claims of any nature become time-barred after 10 years, unless someone 
has previously acquired rights by usucaption or this Code or specific 
legislation provides otherwise.’ 
10 Article 121(23)(1) CcCat, which provides: 
‘The limitation period begins to run once the claim has arisen and become 
enforceable, and once the holder of the claim is, or could reasonably be, 
aware of the circumstances giving rise to the claim and the person against 
whom it may be brought.’ 
11 The Provincial Court of Barcelona has taken the view in various judgments that in 
a term such as a costs clause, whose effects are exhausted once the costs have 
been paid, the limitation period begins to run on payment of the costs invoice, at 
which point the clause’s effects are exhausted. Similarly, it considers that the 
case-law established by the Court of Justice in the judgment of 22 April 2021 
(C-485/19), which states that the limitation period cannot begin to run from when 
the unjust enrichment occurs, is not applicable, because under a costs clause there 
is no risk of the damage continuing throughout a long-term contract ― whereas 
there was such a risk in the case of the fee examined in the judgment ― since 
payment of the costs is exhausted on payment and there is no risk of a 
reoccurrence during the average 30-year term of a mortgage. See, to that effect, 
the second legal ground of the judgment of Section 15 of the Provincial Court of 
Barcelona of 21 May 2021 (ES:APB:2021:5039). 
REQUEST FOR A PRELIMINARY RULING OF 22.7.2021 – CASE C-484/21 
 
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12 For its part, the Provincial Court of Tarragona has handed down several decisions 
in which it takes the view that, irrespective of the fact that an action for a 
declaration of nullity may not be time-barred, the limitation period for claiming 
costs runs from the judgment of the Tribunal Supremo (Supreme Court) of 
23 December 2015, which established case-law on the question of unfair costs 
clauses in mortgage proceedings. See, in particular, the second legal ground of the 
judgment of Section 1 of the Provincial Court of Tarragona of 16 June 2021 
(ES:APT:2021:704). 
13 That same approach is followed by the Provincial Court of Girona, which 
considers that the limitation period cannot begin to run until the consumer is 
aware of the existence of case-law rendering the costs clause void, and identifies 
that point as the date of the judgment of the Supreme Court of 23 December 2015. 
See the judgment of Section 1 of the Provincial Court of Girona of 10 May 2021 
and, in particular, the fifth legal ground (ES:APGI:2021:488). 
14 By contrast, the Provincial Court of Lleida considers that the limitation period for 
such actions does not begin to run until the term has been declared void. On that 
point, see judgment 321/2021 of Section 2 of the Provincial Court of Lleida of 
7 May 2021 and, in particular, the second legal ground (ES:APL:2021:387). 
RELEVANT EU LEGISLATION AND CASE-LAW 
15 EU law imposes an obligation on Member States to ensure consumers a high level 
of protection, and indeed Article 38 of [the Charter of Fundamental rights of the 
European Union, ‘the Charter’] establishes that ‘Union policies shall ensure a high 
level of consumer protection’. 
16 As part of that protection, Article 6(1) of Directive 13/93 on unfair terms in 
consumer contracts provides as follows: 
Member States shall lay down that unfair terms used in a contract concluded 
with a consumer by a seller or supplier shall, as provided for under their 
national law, not be binding on the consumer and that the contract shall 
continue to bind the parties upon those terms if it is capable of continuing in 
existence without the unfair terms. 
17 In turn, Article 7(1) of Directive 13/93 provides: 
Member States shall ensure that, in the interests of consumers and of 
competitors, adequate and effective means exist to prevent the continued use 
of unfair terms in contracts concluded with consumers by sellers or 
suppliers. 
18 It has been stated in the case-law of the Court of Justice on various occasions that 
national consumer protection legislation must ensure the principle of the 
effectiveness of EU law, meaning that national legislation or procedural 
BANKIA 
 
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provisions may not make the application of EU law impossible or excessively 
difficult. This is established in the judgment of the Court of Justice of 10 June 
2021 (Joined Cases C-776/19 to C-782/19, EU:C:2021:470), amongst many other 
judgments. 
DOUBTS OVER INTERPRETATION AND RELEVANCE OF THE 
RESPONSE OF THE COURT OF JUSTICE 
19 Under Catalan civil law the limitation period for actions begins to run when the 
individual could ‘reasonably be aware of the circumstances giving rise to the 
claim’. Depending on how that provision is interpreted, consumers may receive 
varying degrees of protection, and other essential principles such as the 
effectiveness of EU law and the principle of legal certainty may be at risk. This is 
particularly so in the case of unfair terms such as costs clauses in long-term 
contracts, where the financial effects of the term are exhausted once the costs have 
been paid and there is no risk that the term in question can be reapplied during the 
term of the contract, since the costs relate to the signing of the contract. 
20 In the present case, in 2007 a mortgage was created between the applicants and a 
bank which included a term that provided that all the costs of creating the 
mortgage were to be borne by the consumer; the present claim concerns the 
invoices paid by the applicants to the Agent for dealing with the mortgage process 
and the fees paid to the Land Registry in order to register the deed with the 
Registry. Those payments were made in 2007 and it is clear that they will not 
reoccur, because they were incurred as part of the creation of the mortgage. 
21 Against that background, the question that arises is at what point the consumer 
could become aware of the facts that provide the grounds for the action for 
payment: that is, whether it is when the consumer makes the payments and the 
content of the term is exhausted; or when a declaration of nullity is issued; or 
when the courts begin to rule that terms such as this are null and void (where the 
judgment of the Supreme Court of 23 December 2015 establishing case-law on 
this point is relevant). In my mind, there is absolutely no doubt that Articles 6(1) 
and 7(1) of Directive 13/93 are satisfied ― and the principle of the effectiveness 
of EU law is therefore ensured ― if the start of the limitation period is fixed at the 
declaration of nullity; but it is harder to argue for this where the effects of the term 
were exhausted much earlier and there is no risk of any reoccurrence, or where 
awareness of the possibility for bringing an action is dependent on a Supreme 
Court judgment of which the consumer may be unaware until some time later. 
22 In the case before me, if the limitation period begins to run when the costs were 
paid, the action would be time-barred and the consumer would be deprived of 
redress. But if the period begins to run when the Supreme Court declared costs 
clauses to be unfair (December 2015) or when judgment was given declaring the 
individual term void (2 May 2019), the consumer would obtain redress for 
damage suffered pursuant to a term that is void. 
REQUEST FOR A PRELIMINARY RULING OF 22.7.2021 – CASE C-484/21 
 
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23 The judgments of the Court of Justice that have examined the question of 
commencement of the limitation period have done so in connection with terms 
that continued to apply and whose effects were therefore not exhausted, rather 
than in situations where the unfair term has exhausted its effects at an early stage 
of a long-term contract and there is no risk of any reoccurrence. Thus the 
judgment of the Court of Justice of 10 June 2021, which considers it contrary to 
EU law for the limitation period to begin to run from the date of acceptance of the 
offer, examines a term that will continue to apply throughout the term of the 
contract. Similarly, the judgment of the Court of Justice of 22 April 2021, which 
considers it contrary to EU law for the limitation period to begin to run from the 
day on which the enrichment of the trader occurred, examined a term that could 
potentially be reapplied. However, no clear criteria have been established on the 
factors that need to be taken into account in determining when a consumer 
becomes aware that a term is unfair and the limitation period therefore begins to 
run in respect of sums paid pursuant to a term that is void. 
24 For these reasons, a response from the Court of Justice on this issue is relevant to 
ensuring the uniform application of EU law, in particular Articles 6(1) and 7(1) of 
Directive 13/93, having regard to the principle of the effectiveness of EU law. It is 
also relevant to ensuring that all consumers enjoy the same rights since, as noted 
in paragraphs 10 to 13 above, the four provincial courts in Catalonia apply three 
different criteria: the court of Barcelona considers that the period begins to run on 
payment of the costs; the courts of Girona and Tarragona fix the start of the period 
at the judgment of the Supreme Court of 23 December 2015; and the court of 
Lleida fixes it at the point when the term is declared void. 
25 In view of this situation, it is essential to clarify when the limitation period for 
reclaiming mortgage creation costs paid pursuant to an unfair term begins to run 
because, otherwise, Articles 6(1) and 7(1) of Directive 13/93 will not be applied 
consistently and there will also be a breach of Article 21 [of the Charter] and 
Article 38 [of the Charter], since the protection afforded to the consumer will vary 
depending on the court hearing the claim. 
OPERATIVE PART 
I refer the following questions to the Court of Justice of the European Union for a 
preliminary ruling: 
One: Is it compatible with Article 38 [of the Charter of Fundamental Rights of the 
European Union], the principle of the effectiveness of EU law, and Articles 6(1) 
and 7(1) of Directive 13/93 for the limitation period of an action for damages 
arising from an unfair term, such as a costs clause, to begin to run before the point 
when the term in question has been declared void for unfairness? 
Two: Is it compatible with Article 38 [of the Charter of Fundamental Rights of the 
European Union], the principle of the effectiveness of EU law, and Articles 6(1) 
and 7(1) of Directive 13/93 to fix the commencement of the limitation period for 
BANKIA 
 
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an unfair term as the date on which a court with authority to create case-law, such 
as the Supreme Court, states that a particular term is unfair, irrespective of 
whether or not the consumer in question is aware of the content of the judgment? 
Three: Is it compatible with Article 38 [of the Charter of Fundamental Rights of 
the European Union], the principle of the effectiveness of EU law, and 
Articles 6(1) and 7(1) of Directive 13/93 to establish that, in a long-term contract, 
the limitation period for claiming any mortgage creation costs paid begins to run 
at the point when payment is made, given that the unfair term has exhausted its 
effects at that point and there is no risk that it will be reapplied? 
[…] [Procedural formalities] 
[…]