Order;Information — ECLI:EU:C:2025:706
Date: 2025-09-11
Language of the case: Spanish
Court formation: Sixth Chamber
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-447/23 – 1 
Case C-447/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
10 July 2023 
Referring court: 
Juzgado de Primera Instancia e Instrucción n.º 3 de Santa Coloma 
de Farners (Spain) 
Date of the decision to refer: 
15 February 2023 
Applicants: 
Juan Antonio 
María Consuelo 
Defendant: 
Banco Santander, S. A. 
  
Subject matter of the main proceedings 
Directive 2014/59/EU – Resolution of credit institutions and investment firms – 
Article 34(1) – Article 53(1) and (3) – Write-down of capital instruments – Points 
(b) and (c) of the first subparagraph of Article 60(2) – Protection of the rights of 
shareholders and creditors – Action for damages brought subsequent to a 
resolution decision – Pre-emptive subscription rights 
Subject matter and legal basis of the request 
Request for a preliminary ruling on interpretation – Article 267 TFEU – Directive 
2014/59/EU – Protection of the rights of shareholders and creditors – Action for 
damages brought subsequent to a resolution decision – Pre-emptive subscription 
rights – Charter of Fundamental Rights of the European Union – Article 47 – 
Article 52 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-447/23 
 
2  
Questions referred for a preliminary ruling 
‘FIRST. Whether the provisions of Article 34(1)(a), together with Article 53(1) 
and (3) and points (b) and (c) of the first subparagraph of Article 60(2) 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, together 
with the principle of legal certainty and Articles 47 and 52 of the Charter of 
Fundamental Rights of the European Union (‘the Charter’) must be interpreted as 
precluding, subsequent to the application of a resolution tool consisting of the sale 
of the business [of] a credit institution or investment firm, persons having 
acquired pre-emptive subscription rights in the context of a public offer to 
subscribe issued by that institution or firm, before the opening of such a resolution 
procedure, from bringing, against that institution or firm or its successor entity, an 
action for damages on the basis of the defective financial information 
disseminated prior to the purchase, as provided for in Article 7 of Directive 
2004/109/EC of 15 December 2004 on the harmonisation of transparency 
requirements in relation to information about issuers whose securities are admitted 
to trading on a regulated market and amending Directive 2001/34/EC. 
SECOND. Whether it is in accordance with the principle of proportionality 
contained in Article 52 of the Charter that a person who acquired shares or pre-
emptive subscription rights in a financial institution to which the sale of business 
tool has been applied as a resolution scheme, subsequent to the resolution, may, in 
relation to such purchases, bring actions for a declaration of invalidity or for 
damages against that financial institution or its successor entity, where the 
national court, following an overall assessment of all the circumstances, considers 
that to prevent such actions for a declaration of invalidity or for damages would 
mean a disproportionate limitation of the right to an effective remedy. 
THIRD. Whether it is in accordance with the principle of legal certainty to prevent 
former shareholders or investors in an institution to which the resolution tool 
consisting of the sale of the business has been applied from bringing, subsequent 
to the resolution, actions for damages or for annulment in relation to the purchase 
of shares or pre-emptive subscription rights on the basis of defective information 
prior to the purchase, as provided for in Article 6 of Directive 2003/71/EC of the 
European Parliament and of the Council of 4 November 2003 on the prospectus to 
be published when securities are offered to the public or admitted to trading and 
amending Directive 2001/34/EC, and in Article 7 of Directive 2004/109/EC of 
15 December 2004 on the harmonisation of transparency requirements in relation 
to information about issuers whose securities are admitted to trading on a 
regulated market and amending Directive 2001/34/EC, when the prior decision of 
the SRB which had adopted the resolution mechanism had envisaged the 
possibility of such actions for damages or for annulment being brought, when the 
BANCO SANTANDER 
 
3 
prior decision of the SRB regarding potential compensation for former 
shareholders and creditors of the resolved institution also envisaged the possibility 
of such actions being brought and when Title X of Directive 2014/59/EU 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, does not 
provide for any exceptions or amendments which prevent such actions being 
brought.’ 
Provisions of European Union law and case-law relied on 
Article 34(1)(a), Article 53(1) and (3) and points (b) and (c) of the first 
subparagraph of Article 60(2) of Directive 2014/59/EU. 
Articles 47 and 52 of the Charter of Fundamental Rights of the European Union. 
Judgment of the Court of Justice of 17 December 2015, WebMindLicenses, 
C-419/14, EU:C:2015:832 
Judgment of the Court of Justice of 5 July 2017, Fries, C-190/16, EU:C:2017:513 
Judgment of the Court of Justice of 12 July 2018, Spika and Others, C-540/16, 
EU:C:2018:565 
Judgment of the Court of Justice of 11 July 2019, Agrenergy and Fusignano Due, 
C-180/18, C-286/18 and C-287/18, EU:C:2019:605 
Judgment of the Court of Justice of 6 October 2020, État luxembourgeois 
(Judicial protection against requests for information in tax law), C-245/19 and 
C-246/19, EU:C:2020:795 
Judgment of the Court of Justice of 29 April 2021, Banco de Portugal and Others, 
C-504/19, EU:C:2021:335 
Judgment of the Court of Justice of 5 May 2022, Banco Santander (Banco 
Popular bank resolution), C-410/20, EU:C:2022:351 
Provisions of national law relied on 
Articles 1101, 1303, 1307 and 1902 of the Código Civil (Spanish Civil Code; ‘the 
Civil Code’). 
Article 38(1), Articles 118, 119 and 120, Article 124(1) and Articles 208, 209, 210 
and 228 of Real Decreto Legislativo 4/2015, de 23 de octubre, por el que se 
aprueba el texto refundido de la Ley del Mercado de Valores (Royal Legislative 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-447/23 
 
4  
Decree 4/2015 of 23 October 2015 approving the recast text of the Securities 
Market Law; ‘Royal Legislative Decree 4/2015’). 
Article 37(2) and 39(2) of 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 2015 on the recovery and resolution of credit institutions and 
investment firms; ‘Law 11/2015’). 
Succinct presentation of the facts and procedure in the main proceedings 
1 In 2016, Mr Baldomero and Juan Antonio, father and son, acquired 38 766 Banco 
Popular pre-emptive subscription rights in the secondary market, for which they 
paid EUR 9 924.10. That purchase of pre-emptive subscription rights allowed 
them to take part in a Banco Popular capital increase and to subscribe for 35 997 
newly issued shares, on 20 June 2016, for which they paid EUR 44 996.25. 
2 As a result of the serious financial difficulties in which Banco Popular then found 
itself, Banco Santander acquired it for the nominal sum of EUR 1. On 7 June 
2017, by a decision of the Fondo de Reestructuración Ordenada Bancaria (Spanish 
Executive Resolution Authority), all of Banco Popular’s capital instruments were 
converted into shares, the share capital was reduced to zero by writing down all of 
its shares and a simultaneous capital increase was carried out, which was wholly 
subscribed by Banco Santander. Banco Popular’s shareholders received no 
consideration whatsoever as a result of those transactions. 
3 On 12 September 2017, Banco Santander brought out a product called ‘Bonos 
Fidelización’ (‘Loyalty Bonds’), aimed at former Banco Popular shareholders who 
had acquired shares in that bank in the period between 26 May and 21 June 2016, 
by subscribing for newly issued shares or purchasing shares already in issue. 
Purchasing the Loyalty Bonds implied accepting a clause waiving the right to take 
legal action and assert legal claims against the companies of Grupo Santander in 
connection with the Banco Popular shares. Banco Santander devoted EUR 535 
million to that commercial action, an amount lower than the EUR 680 million 
estimated by the bank itself for the possible compensation of Banco Popular 
shareholders and bondholders registered in 2017. 
4 On 24 April 2018, Banco Santander informed the Comisión Nacional del Mercado 
de Valores (National Securities Market Commission, Spain) that its board of 
directors and that of Banco Popular had agreed the merger by absorption of that 
bank by Banco Santander. 
5 The Banco Popular shareholders in relation to whom resolution measures were 
taken were not entitled to compensation from the Single Resolution Fund. 
6 Numerous Spanish courts have held it to be a well-known fact that Banco Popular 
did not present an accurate picture of itself in its annual accounts for 2016, nor in 
the prospectus for the 2016 capital increase. In the opinion of the referring court, 
BANCO SANTANDER 
 
5 
since the information published by Banco Popular before, during and after the 
capital increase of May to June 2016 did not present an accurate picture of the 
institution, the purchase of pre-emptive subscription rights and of shares in Banco 
Popular took place with a defect of consent and it is necessary to award 
compensation to those affected. 
7 According to Banco Santander’s annual accounts, its profits for the 2021 financial 
year amounted to EUR 8 124 000 000. In the first quarter of 2022, its profits were 
EUR 2 524 000 000. 
8 Following the judgment of the Court of Justice in Case C-410/20, the vast 
majority of Spanish courts, including the Tribunal Supremo (Supreme Court, 
Spain), have dismissed claims or refused to consider appeals by former Banco 
Popular shareholders, regardless of the date on which they acquired their shares, 
as they have held that the interpretation of Directive 2014/59 given by the Court 
of Justice prevents shareholders from bringing actions for damages or for a 
declaration of invalidity against the institution that issued the shares or against any 
successor entity after the resolution decision was taken. 
9 On 28 July 2021, Juan Antonio and María Consuelo brought a claim against 
Banco Santander in connection with the purchase of the 38 766 pre-emptive 
subscription rights and the 35 997 shares in the now defunct Banco Popular, 
which they made in June 2016. In those proceedings, Banco Santander argues 
that, based on the facts, there is no standing for it to be sued. 
10 The referring court considers that the case pending before it differs from the main 
proceedings in Case-410/20 in so far as the claimants acquired pre-emptive 
subscription rights for shares, prior and in addition to the Banco Popular shares. 
11 It is referring three questions for a preliminary ruling in order to settle the doubts 
it has as to whether preventing the claimants from bringing actions, as set out in 
the judgment given in Case C-410/20, is or is not compatible with the provisions 
of Article 52 of the Charter of Fundamental Rights of the European Union and 
with the principle of legal certainty. 
The essential arguments of the parties in the main proceedings 
12 The claimants were in favour of referring the questions for a preliminary ruling. 
13 Banco Santander was against referring the questions for a preliminary ruling on 
the basis that the judgment of the Court of Justice in Case C-410/20 prevents the 
claimants from being given standing to sue. Furthermore, it maintains that Banco 
Popular did present an accurate picture of its assets in its financial statements and 
that, with their legal action, the claimants are trying to shift responsibility for the 
risk of the investment onto Banco Santander because their investment did not 
produce the expected results. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-447/23 
 
6  
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 In order to prevent actions for damages from being brought in connection with the 
subscription of shares in an institution to which a resolution scheme has 
subsequently been applied, paragraph 43 of the judgment of the Court of Justice 
given in Case C-410/20 stated that ‘such actions would call into question the 
entire valuation upon which the resolution decision is based because the 
breakdown of the capital forms part of the objective data for that valuation’. 
15 The referring court is uncertain whether investors who not only purchased shares, 
but also pre-emptive subscription rights in the secondary market, as in the case of 
the claimants, are able to bring actions for damages against the issuer, or its 
successor, based on the dissemination of defective information, even after the 
application of a resolution tool consisting of the sale of the business. 
16 In that regard, it has doubts as to whether the judgment of the Court of Justice 
given in Case C-410/20 is applicable to the main proceedings, since: (i) the pre-
emptive subscription rights purchased by the claimants in the secondary market do 
not form part of the share capital, nor were they written down as a result of the 
application of the resolution scheme; (ii) the valuations which form part of the 
decisions that led to the resolution of Banco Popular included adjustments for 
potential legal contingencies in relation to its previous capital increases; (iii) Title 
X of Directive 2014/59 does not contain any provision which clearly and precisely 
prevents actions for damages from being brought or establishes an exception to 
the application of Directive 2004/109; (iv) Banco Santander had access to the 
confidential version of the valuation of Banco Popular before making its offer to 
acquire it; and (v) following the acquisition, Banco Santander carried out 
corporate and commercial actions aimed at dealing with future legal claims by 
investors who had taken part in the Banco Popular capital increase in 2016. 
17 In the opinion of the referring court, the claimants’ situation could come into 
conflict with the right to an effective remedy and with the principles of 
proportionality and legal certainty. 
18 The second question referred is based on the doubts which the referring court has 
regarding the proportionality of the limitation of the right of any investor to bring 
actions for damages or for annulment based on defective information prior to the 
purchase of the shares or pre-emptive subscription rights, if a resolution scheme 
has subsequently been applied to the institution concerned. First, because it is 
almost certain that the prior valuation carried out by an independent expert to 
determine the value of the institution undergoing direct sale will have taken into 
account the potential claims which the institution in question will have to deal 
with. And, second, because when the entities taking part in the competitive 
process to acquire the institution to which the sale of business tool is applied offer 
a price for it, they will also do so taking into consideration possible future claims. 
BANCO SANTANDER 
 
7 
19 In the case of Banco Popular, the risk of future legal claims was very well known, 
since inaccurate information had been disseminated regarding the financial 
situation and assets of the institution. In the opinion of the referring court, 
knowledge of that risk must have influenced the value ascribed to the institution 
and the price offered for it. 
20 Even though the Court of Justice has held that the fact that former shareholders 
are able to access other avenues of redress, along with the safeguard mechanism 
established in Directive 2014/59, implies respect for the essential content of the 
right to an effective remedy of such shareholders or investors, even where actions 
for annulment or for damages are not permitted to be brought, the referring court 
considers it appropriate for the national court, taking all of the applicable factual 
and legal circumstances into consideration, to check once again both whether such 
a limitation respects the essential content of the right to an effective remedy and 
whether it is proportionate. 
21 The third question referred is based on the principle of legal certainty, which 
requires legal rules to be clear and precise and their application to be predictable 
for litigants, especially in the case of rules that may imply financial consequences. 
22 In that regard, Title X of Directive 2014/59 does not provide for any exceptions to 
the application of Directives 2003/71 and 2004/109. Furthermore, the Single 
Resolution Board accepted a valuation which envisaged the possibility that, 
subsequent to the resolution, former shareholders or investors would bring actions 
for damages or for annulment based on defective information prior to the purchase 
of shares or pre-emptive subscription rights. 
23 Notwithstanding the judgment of the Court of Justice in Case C-410/20, the 
referring court considers it appropriate to examine the questions referred from the 
perspective of a former Banco Popular shareholder after 17 March 2020. On that 
date, the Single Resolution Board decided that it was not appropriate to award any 
compensation to former shareholders in Banco Popular. Accordingly, following 
that decision, a shareholder whose shares had been written down could only bring 
an action for annulment or for damages in relation to the purchase of the shares – 
an option which, following the judgment of the Court of Justice in Case C-410/20, 
practically all Spanish courts reject.