Opinion of the Advocate General — ECLI:EU:C:2025:93
Date: 2025-02-13
Language of the case: Spanish
Procedure: Reference for a preliminary ruling
Origin: Spain

Translation C-687/23 – 1 
Case C-687/23 
Request for a preliminary ruling 
Date lodged: 
15 November 2023 
Referring court: 
Tribunal Supremo (Spain) 
Date of the decision to refer:  
2 November 2023 
Appellant: 
D.E. 
Respondent: 
Banco Santander, S. A. 
  
TRIBUNAL SUPREMO, SALA PRIMERA DE LO CIVIL (Supreme Court, 
Spain, First Civil Chamber). 
[…] [procedural formulae] 
SUPREME COURT 
Civil Chamber 
Order No / 
[…] [members of the panel] 
In Madrid, on 2 November 2023 
[…] [reporting judge] 
FACTS 
ONE.- Relevant background. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 2. 11. 2023 – CASE C-687/23 
 
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1. - Banco Popular Español, S. A. (‘Banco Popular’) carried out an issue of 
‘Bonos Popular I/2010 Capital Convertible 8%’, also known as ‘Bonos 
Subordinados Canjeables por Obligaciones Subordinadas de Banco Popular 
Español, S. A. I/2009’ (Subordinated Bonds Exchangeable for Subordinated 
Obligations of Banco Popular Español, S. A. I/2009; ‘Subordinated Bonds 
I/2009’). 
On 3 October 2009, D.E., as the sole director of the company Lera Blava, S. L. U., 
subscribed to 15 of those convertible bonds, for a total amount of EUR 15 000. 
In May 2012, D.E., also acting on behalf of Lera Blava, S. L. U., exchanged those 
Subordinated Bonds I/2009, which matured in October 2013, for other mandatory 
convertible subordinated bonds (II/2012), maturing in November 2015. 
On 14 January 2013, as payment for outstanding wages, the company granted 
D.E. ownership of those convertible bonds and that subrogation of D.E. to the 
ownership of the bonds was agreed to by the bank on 22 February 2013. 
The mandatory convertible subordinated bonds (II/2012) were exchanged, 
mandatorily, for Banco Popular shares on 25 November 2015. 
2. - On 7 June 2017, the European Commission adopted Decision (EU) 
2017/1246, endorsing the resolution scheme for Banco Popular Español, S. A. (OJ 
2017 L 178, p. 15); the Single Resolution Board (SRB) adopted Decision 
SRB/EES/2017/08, which activated the resolution scheme for Banco Popular. 
The resolution instrument adopted consisted in the sale of the business by means 
of the transfer of the shares therein to a purchaser, Banco Santander, which 
purchased them for the sum of EUR 1. 
Decision SRB/EES/2017/08 of the SRB was implemented by means of the 
Decision of 7 June 2017 of the Spanish Executive Resolution Authority (Fondo de 
Reestructuración Ordenada Bancaria; ‘FROB’) (Official State Gazette No 155 of 
30 June 2017, p. 55470) – as the Executive Resolution Authority, pursuant to 
Article 2(1)(d) of Law 11/2015, of 18 June. 
The FROB agreed to reduce Banco Popular’s existing share capital at that time to 
zero euros (EUR 0) by writing down all of the shares in circulation, with the aim 
of establishing an unavailable voluntary reserve. At that moment, D.E. ceased to 
be the owner of the shares which he had obtained as a result of the exchange of 
the subscribed bonds, without receiving any consideration whatsoever. 
3. - As a consequence of the resolution measures adopted by the FROB to 
implement the decision of the SRB, Banco Santander acquired all of the newly 
issued Banco Popular shares, which were issued by means of the conversion of the 
tier 2 capital instruments into newly issued shares as agreed in that decision. 
Subsequently, in 2018, by means of a merger by absorption of Banco Popular, 
BANCO SANTANDER 
 
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Banco Santander became the universal successor to Banco Popular, whose legal 
personality was extinguished. 
TWO.- Proceedings giving rise to the request for a preliminary ruling. Decision 
at first and second instance. 
1. - In October 2016, D.E. made a claim against Banco Popular seeking a 
declaration of nullity in respect of the purchase of the convertible subordinated 
bonds, due to a defect of consent, and an order for the return of the amount 
initially invested (EUR 15 000), plus the statutory interest accrued since the 
moment of subscribing to the product. 
 
Secondarily, he sought an award of damages, because of the defendant’s failure to 
comply with the legal obligations relating to information in respect of the 
subscription of the bonds in 2009 and their subsequent exchange in 2012. The 
claimant [now the appellant] based his claim on the defective marketing of the 
product in view of the requirements of the MiFID rules. 
2. - The court of first instance tasked with hearing the proceedings found in 
favour of the appellant and declared the subscription of the mandatory convertible 
subordinated bonds null and void. 
3. - The defendant bank appealed against the decision and the Audiencia 
Provincial (Provincial Court, Spain) allowed the appeal, finding there to be a 
defence of lack of locus standi on the part of D.E. 
THREE.- Appeal pending before the Supreme Court, in the context of which the 
decision was made to refer this question for a preliminary ruling. 
1. - The appellant has lodged an appeal against the decision of the Provincial 
Court. The appeal focuses on the denial of locus standi, as it maintains that the 
transfer of the ownership of the company’s bonds to its sole director and 
shareholder was valid. 
If those grounds of appeal are allowed, it would then be necessary to adjudicate on 
the nullity of the purchase of the Subordinated Bonds I/2009 and their subsequent 
exchange for other mandatory convertible subordinated bonds (II/2012). 
2. - In its deliberations on the appeal, the court agreed to hear the parties 
regarding the relevance of requesting a preliminary ruling from the Court of 
Justice. Both parties have expressed their opposition to the question being referred 
for a preliminary ruling. 
FOUR.- […] [details of the parties and their representatives] 
LAW 
ONE.- European Union law. 
REQUEST FOR A PRELIMINARY RULING OF 2. 11. 2023 – CASE C-687/23 
 
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The question being referred amounts to a supplement to the question we 
formulated in our order of 15 December 2022. The rules of EU law affected, 
which we will here confine ourselves to summarising, are the same: 
a) Article 34(1)(a) and (b) of Directive 2014/59/EU of the European Parliament 
and of the Council of 15 May 2014 establishing a framework for the recovery and 
resolution of credit institutions and investment firms and amending Council 
Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 
2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and 
Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European 
Parliament and of the Council (‘Directive 2014/59/EU’). 
b) Article 53(1) and (3) of Directive 2014/59/EU. 
c) And Article 60(2)(a), (b) and (c), of Directive 2014/59/EU. 
Directive 2014/59/EU was transposed in Spain by Ley 11/2015, de 18 de junio, de 
recuperación y resolución de entidades de crédito y empresas de servicios de 
inversión (Law 11/2015, of 18 June, on the recovery and resolution of credit 
institutions and investment firms; ‘Law 11/2015’), which contains various 
provisions that reproduce, in identical or similar terms, the provisions of that 
directive as set out in the preceding paragraphs. 
The question is also set within the context of the case-law established by the 
judgment of the Court of Justice of 5 May 2022, in Case C-410/20 
(EU:C:2022:351) 
TWO.- Justification for the request for a preliminary ruling. Questions arising as 
a result of the judgment of the Court of Justice of the EU of 5 May 2022 
(C-410/20). 
1. - Spanish courts have given disparate interpretations to the various 
provisions of Directive 2014/59/EU in relation to the measures for the resolution 
of Banco Popular, which has led to differing resolutions to the disputes. That has 
caused a substantial number of appeals regarding this question to be brought 
before the Supreme Court. 
2. - The judgment of the Court of Justice of 5 May 2022, in Case C-410/20 
(EU:C:2022:351), ruled on how Article 34(1)(a), read together with Article 53(1) 
and (3), as well as Article 60(2), first subparagraph, points (b) and (c), of 
Directive 2014/59/EU, are to be interpreted, in relation to (i) actions for damages 
on the basis of the information provided in the prospectus and actions for a 
declaration of nullity in respect of the subscription contract for Banco Popular 
shares, (ii) acquired in the context of a public offer to subscribe, (iii) which were 
written down in the resolution procedure for that bank, (iv) [where such actions 
are] brought by persons who were holders of such Banco Popular shares before 
the start of the resolution procedure. 
BANCO SANTANDER 
 
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3. - In the main proceedings in which this request for a preliminary ruling is 
made, the subordinated bonds mandatorily convertible into Banco Popular shares, 
Subordinated Bonds I/2009, subsequently exchanged for other mandatory 
convertible subordinated bonds (II/2012), do not correspond to any of the 
additional capital instruments written down or cancelled by the effects of the 
resolution scheme for Banco Popular. However, those bonds were exchanged for, 
or converted into, shares in Banco Popular on 25 November 2015, in accordance 
with the terms of the issue to which they belonged (series II/2012). The appellant 
was the holder of those shares from the date of the exchange until 7 June 2017, 
when, under the resolution scheme for Banco Popular, they were written down, 
together with the rest of the shares that formed the share capital. 
Those bonds having been exchanged for Banco Popular shares on 25 November 
2015, before the decision regarding the resolution of the bank (7 June 2017), it 
seems clear that the effects of the resolution scheme also affect the shares 
acquired by the appellant in that exchange, which he still held on the date of the 
resolution, when they were consequently written down, since the first measure of 
the Decision of the Governing Committee of the FROB of 7 June 2017 consisted 
in: ‘Reducing the existing share capital of Banco Popular Español, S. A. from two 
billion, ninety-eight million, four hundred and twenty-nine thousand and forty-six 
euros (EUR 2 098 429 046) to EUR 0, by means of the write down of all of the 
shares currently in circulation […]’, regardless of the basis on which the shares 
were acquired. 
A question arises for us in this dispute which is, in part, similar to that which was 
the subject of the question referred in the order of 15 December 2022. The 
question arising relates to the scope of the effect of discharging all obligations or 
liabilities on the part of Banco Santander, as the universal successor to Banco 
Popular, in particular as regards the claim or right which would arise from a court 
judgment finding the subscription of the mandatory convertible Subordinated 
Bonds I/2009 and those subsequently acquired in exchange, II/2012, null and void 
and ordering the return of the amounts initially handed over to purchase those 
bonds (EUR 15 000), taking into account that those subordinated bonds 
convertible into shares do not form part of the additional capital instruments 
referred to in the measures for the resolution of Banco Popular, but ended up 
being converted into shares in the same bank, as provided for in [the terms of] 
their issue, before the abovementioned resolution measures were adopted. 
In this case, the difference which justifies expanding the question previously 
referred for a preliminary ruling is that the action for a declaration of nullity was 
brought before the procedure for the resolution of the bank had been concluded. 
Therefore, at the root of the question, in this case, is whether that claim or right 
would be a liability affected by the provision of Article 53(3) of Directive 
2014/59/EU, given that the claim was brought before the procedure for the 
resolution of the bank had been concluded and in view of the exception 
established by that provision with regard to ‘unaccrued liabilities’. 
REQUEST FOR A PRELIMINARY RULING OF 2. 11. 2023 – CASE C-687/23 
 
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The question arises because, as the judgment of the Court of Justice of 5 May 
2022 underlines, Article 53(3) of Directive 2014/59/EU states that ‘where a 
resolution authority reduces to zero the principal amount of, or outstanding 
amount payable in respect of, a liability, any obligations or claims arising in 
relation to it that are not accrued at the time when the institution or firm is 
resolved shall be treated as discharged for all purposes, and shall not be provable 
in relation to the credit institution or investment firm under resolution or any 
successor entity in any subsequent winding up’ [emphasis in bold added]. That 
same judgment of the Court of Justice likewise emphasises that Article 60(2) of 
the same directive, in relation to the provisions governing the write down or 
conversion of capital instruments, provides that ‘where the principal amount of a 
relevant capital instrument is written down: […] (b) no liability to the holder of 
the relevant capital instrument shall remain under or in connection with that 
amount of the instrument, which has been written down, except for any liability 
already accrued, and any liability for damages that may arise as a result of an 
appeal challenging the legality of the exercise of the write-down power’ 
[emphasis in bold added]. 
4. - In the case of the main proceedings to which this reference for a 
preliminary ruling relates, the convertible bonds matured and were converted into 
shares before the start of the procedure for the resolution of Banco Popular and the 
action for a declaration of nullity was also brought prior to the start of that 
resolution procedure. 
5. - As we have observed, the judgment of the Court of Justice of 5 May 2022, 
even if it refers to ‘persons having acquired shares, in the context of a public offer 
to subscribe issued by that institution or firm, before the opening of such a 
resolution procedure’, provides some considerations of interest in a case such as 
ours. 
First, it recalls that, according to Article 34(1)(a) and (b) of Directive 2014/59/EU, 
‘it is the shareholders, followed by the creditors, of a credit institution or 
investment firm under resolution that are required to bear the first losses incurred 
as a result of the application of that procedure’. And, in particular, in accordance 
with Article 53(3) of Directive 2014/59/EU, ‘where a resolution authority reduces 
to zero the principal amount of, or outstanding amount payable in respect of, a 
liability, any obligations or claims arising in relation to it that are not accrued 
at the time when the institution or firm is resolved shall be treated as discharged 
for all purposes, and shall not be provable in relation to the credit institution or 
investment firm under resolution or any successor entity in any subsequent 
winding up’ (paragraph 33). 
And, later on, it adds that ‘Article 60 of Directive 2014/59 on the write down or 
conversion of capital instruments, states in paragraph 2, first subparagraph, (b), 
that no liability to the holder of the capital instruments written down under the 
resolution decision shall remain, except for any liability already accrued, and 
BANCO SANTANDER 
 
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any liability for damages that may arise as a result of an appeal challenging the 
legality of the exercise of the write-down power’. 
In Spanish law, ‘devengo’ [from the Spanish verb ‘devengar’, one of two Spanish 
verbs used in the Spanish version of Directive 2014/59/EU to mean ‘accrue’ in the 
sense relevant to this case] is understood to mean the moment at which the right to 
claim performance of an obligation arises. While ‘vencimiento’ [from ‘vencer’, 
the other such verb] is understood to refer to the end of the period established for 
the performance of an obligation, from which point that obligation is enforceable. 
Moreover, in the present case, the possible order to return the amount initially 
handed over to purchase the bonds, as a consequence of a declaration of nullity in 
respect of their subscription and subsequent exchange, does not relate to any 
obligation or liability resulting from ‘the exercise of the write-down power’, but 
rather from the marketing of the financial products of which the investment 
initially consisted. That is, its cause of action does not lie in the loss of the value 
of the investment as a consequence of the write down of the shares, but rather it 
has its origin in the liabilities arising from the initial transaction of subscribing to 
the bonds, which were subsequently converted into shares. 
In that regard, the fact that the possible claim for restitution has arisen outside the 
scope of the courts (and, therefore, must be regarded as accrued) and is due (since 
it would not be subject to a time period) is not incompatible with its classification 
as a ‘contingent claim’ until it is definitively established (or excluded) by the 
courts, and, as such, it seems reasonable that claims which are in that situation 
(the subject of current or potential litigation) may be taken into account in a 
prudent assessment of the liabilities of the entity from which compensation or 
restitution is claimed by reason of the marketing of those same financial products. 
6. - If we were to understand that those liabilities may have arisen from the 
possible liability relating to the marketing of the subordinated bonds necessarily 
convertible into shares, in no event would they form part of those ‘liabilities 
already accrued’, to which the exclusion from the discharging effects of the write 
down contained in Article 60(2)(b) of Directive 2014/59/EU refers, nor would 
they form part of the obligations or claims already accrued at the time of the 
resolution of Banco Popular, as referred to in Article 53(3) of the Directive, [and 
therefore] D.E. would lack locus standi to bring the action he has brought against 
Banco Santander. A determination in that regard is the subject of the appeal 
pending before this court. 
OPERATIVE PART 
THE CHAMBER DECIDES: […] to refer the following question to the Court of 
Justice of the European Union for a preliminary ruling: 
Must Article 34(1)(a) and (b), read together with Article 53(1) and (3), as well as 
Article 60(2), first subparagraph, points (b) and (c), of Directive 2014/59/EU be 
interpreted as meaning that the possible claim or right that arises from a judgment 
REQUEST FOR A PRELIMINARY RULING OF 2. 11. 2023 – CASE C-687/23 
 
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ordering payment of compensation given against the successor entity to Banco 
Popular Español, S.A. following an action for damages arising from the marketing 
of a financial product (subordinated bonds necessarily convertible into shares in 
the same bank) not included among the additional capital instruments to which the 
resolution measures for Banco Popular refer, which were ultimately converted 
into ordinary shares in the bank before the bank resolution measures were adopted 
(7 June 2017), could be considered a liability affected by the write-down or 
cancellation provision of Article 53(3) of Directive 2014/59/EU, as an 
‘unaccrued’ obligation or claim, such that it would be discharged and would not 
be enforceable against Banco Santander, as the successor entity to Banco Popular, 
where the claim from which that judgment ordering payment of compensation 
arises was brought before the procedure for the resolution of the bank had 
been concluded? 
Or, conversely, must those provisions be interpreted as meaning that the 
abovementioned claim or right constitutes an ‘accrued’ obligation or claim – 
Article 53(3) of the Directive – or ‘liability already accrued’ at the time of the 
resolution of the bank – Article 60(2)(b) – and, as such, excluded from the effects 
of the discharge or settlement of those obligations or claims, and, consequently, 
[that the abovementioned claim or right] is enforceable against Banco Santander, 
as the successor to Banco Popular, where the claim from which that judgment 
ordering payment of compensation arises was brought before the procedure for 
the resolution of the bank had been concluded? 
[…] [closing procedural formulae and judges’ signatures]