Order;Information — ECLI:EU:C:2025:253
Date: 2025-03-24
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Spain

Translation C-443/24 – 1 
Case C-443/24 
Request for a preliminary ruling 
Date lodged: 
19 June 2024 
Referring court: 
Audiencia Provincial de Málaga (Spain) 
Date of the decision to refer: 
11 June 2024 
Appellant: 
Blanca 
Respondent: 
Cajasur Banco S.A.U. 
  
CIVIL DIVISION NO 6 OF THE AUDIENCIA PROVINCIAL DE 
MÁLAGA (PROVINCIAL COURT, MÁLAGA, SPAIN) 
[…] [address of the referring court] 
ORDER 
[…] [identification of the members of the referring court] 
Málaga, 11 June 2024 
Having regard to […] the civil appeal […] brought in relation to the 
proceedings of the Juzgado de Primera Instancia 18a de Málaga (Court of 
First Instance No 18a, Málaga, Spain) in ordinary proceedings […], brought 
by the appellant Ms Blanca […] against CAJASUR S.A.U. […], this court 
hereby rules on the basis of the following 
EN 
REQUEST FOR A PRELIMINARY RULING OF 11. 6. 2024 – CASE C-443/24 
 
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I. FACTS 
1.- On 3 November 2020, this Division delivered a judgment […] dismissing 
the appeal filed against the judgment of 21 May 2019 delivered in the ordinary 
proceedings […] of the Court of First Instance 18 of Málaga. 
2.- The judgment delivered by the Court of First Instance dismissed the claim 
filed against CajaSur Banco S.A.U. seeking a declaration of invalidity of the so-
called floor term in the mortgage loan deed and ordered the defendant to pay the 
sum of EUR 11 354.75 plus interest. 
3.- By a judgment of the Tribunal Supremo (Supreme Court, Spain) of 
10 October 2023, the appeal on a point of law brought by the appellant was 
upheld, with the following ruling: 
1.- [The Court] upholds the appeal on a point of law brought by Ms Blanca 
against judgment […]/2020 of 3 November 2020, delivered by Civil Division No 6 
of the Málaga Provincial Court, in the appeal […], which we hereby overturn and 
set aside. 
2.- And refers the proceedings back to the abovementioned appeal court, which 
must rule on the claims made without being able to assess the validity of any 
agreement that would prevent a claim of invalidity of the agreement limiting the 
minimum variation of variable interest established in the deed of December 2004 
and the repayment of the amounts paid in application of that deed. […] 
[…] [points in the judgment with irrelevant content] 
4.- On 29 June 2023, Real Decreto-ley 5/2023, de 28 de junio (Royal Decree-
Law No 5/2023 of 28 June 2023) was published in [the] BOE (Spanish Official 
State Gazette), adopting and extending certain measures in response to the 
economic and social consequences of the war in Ukraine; supporting the 
reconstruction of the island of La Palma and other situations of vulnerability; 
transposing European Union Directives on structural modifications of commercial 
companies and reconciliation of family and professional life for parents and 
carers; and regulating the implementation and enforcement of European Union 
law. This text entered into force, in so far as is relevant here, within one month of 
its publication, on 30 July 2023. 
5.- […] [measures of organisation of procedure] 
6.- By order of 12 December 2023, the parties were given a period of ten days 
to indicate their opinions as to whether there was a need, in order to resolve the 
case, to raise a question of unconstitutionality (Ley Orgánica 2/1979, de 3 de 
octubre, del Tribunal Constitucional (Organic Law No 2/1979 of 3 October 1979 
of the Constitutional Court)) regarding Article 487(1) of the Ley de 
Enjuiciamiento Civil 1/2000 (Law on Civil Procedure No 1/2000) (in relation to 
Article 1(6) of the Civil Code) following the amendments resulting from Royal 
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Decree-Law No 5/2023 and paragraph 4 of [the] tenth transitional provision of 
that text, and specifically regarding the fourth subparagraph. Similarly, the parties 
were notified that the case was also being referred for a preliminary ruling under 
Directive 93/13/EEC on the wording of that provision and its transitional 
arrangements, in so far as it is stated that if there is case-law of the Spanish 
Supreme Court on any issue, the proceedings in question may be referred back to 
the lower court to rule again in accordance with that case-law, even if this means 
contradicting the established case-law of the Court of Justice of the European 
Union in the interpretation of that legislation in relation to consumers. 
Clarification was also needed as to whether, on the basis of that legislation and 
given the case to be decided, this process is in accordance with Article 4(1) and 
(2) of Directive 93/13/EEC, in conjunction with the first and second paragraphs of 
Article 47 (right to an effective remedy) of the Charter of Fundamental Rights of 
the European Union, in that the Supreme Court has already established, on the 
basis of that legislation, the facts that the lower court should or should not take 
into account for a second decision, following the annulment of the first decision. 
7.- […] [identification of the judge-rapporteur] 
II. LAW 
First: The referral of both questions 
The Court has decided to refer two different questions. First, a question of 
unconstitutionality […] [brief description of the subject matter of the question of 
unconstitutionality] 
The second question is a question to be referred for a preliminary ruling to the 
Court of Justice as regards consumer law, since the Supreme Court has not taken 
into consideration, when referring the case back to the lower court, the fact that 
we are dealing with consumer law and that the judgment of the Court of Justice in 
Joined Cases C-154/15 and C-307/15, Gutiérrez Naranjo, of 21 December 2016 – 
[…] states in paragraph 74 that, [given that] ‘the referring courts, being bound for 
the purposes of the decisions to be given in the main proceedings by the 
interpretation of EU law given by the Court, must disapply, of their own motion, 
the temporal limitation which the Tribunal Supremo (Supreme Court) applied in 
its judgment of 9 May 2013, because that limitation does not appear to be 
compatible with that law (see, to that effect, judgments of 5 October 2010, 
Elchinov, C-173/09, EU:C:2010:581, paragraphs 29 to 32; of 19 April 2016, DI, 
C-441/14, EU:C:2016:278, paragraphs 33 and 34; of 5 July 2016, Ognyanov, 
C-614/14, EU:C:2016:514, paragraph 36; and of 8 November 2016, Ognyanov, 
C-554/14, EU:C:2016:835, paragraphs 67 to 70)’. 
These questions will therefore be raised in two different decisions, given the 
channels and procedures to be followed, but they are based on the same factual 
background described above. 
REQUEST FOR A PRELIMINARY RULING OF 11. 6. 2024 – CASE C-443/24 
 
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Second: The conclusion of the Spanish Supreme Court 
Article 487(1) of the civil procedural rules in Spain allows the Supreme Court to 
refer a case back to the court of origin, as it has done here, if it considers that there 
is case-law (including in consumer and user matters and other areas where the 
scope [is] European) that, according to its interpretation, conflicts with the 
findings of the court from which the proceedings originate. The text of the 
legislation is as follows: 
‘1. Appeals on points of law shall be decided by judgment, unless, 
where there is already established case-law on the question or 
questions raised, the contested decision conflicts with that case-law, in 
which case the appeal may be decided by an order that sets aside the 
contested decision and refers the case back to the court from which it 
originated so that that court may issue a new decision in accordance 
with the established case-law.’ 
In this case, the Supreme Court has ruled that a judgment delivered in 2020 
infringes the case-law established in the years 2021 and 2022 by the Supreme 
Court on the same matter and, therefore, has referred the case back to the Málaga 
Provincial Court to rule again, apply that later case-law and disregard certain 
evidence adduced in the proceedings. 
After the judgments at first and second instance, the Spanish Supreme Court is 
applying the provisions of Article 487(1) of the Law on Civil Procedure 
No 1/2000, as amended by Royal Decree-Law No 5/2023, which was in force at 
the time when the Supreme Court delivered its judgment, but not at the time when 
the judgment was delivered on appeal or [when] the appeal was lodged. In 
applying that provision, the Supreme Court is applying the legislation 
retroactively. 
In this specific case, the Supreme Court considers that there has been an 
infringement of that court’s case-law existing in ‘similar cases’, which it identifies 
[as] the following: Supreme Court judgment No 138/2015 of 24 March 2015; 
Supreme Court judgment No 403/2021 of 15 June 2021; Supreme Court judgment 
No 421/2021 of 22 June 2021; and Supreme Court judgments No 575 and 
576/2022 of 29 July 2022. This is stated in the Supreme Court’s decision which 
explains and discusses all these judgments. It should be borne in mind that the 
judgment of the referring court is dated 3 November 2020, and thus at that time 
only one of the above judgments had been delivered (the judgment 24 March 
2015, which we are now analysing) and, therefore, there was no case-law, and 
[that judgment] did not cover the core subject matter of the proceedings. 
However, the Supreme Court’s interpretation of the amended legislation has been 
that it is possible to rule in accordance with Article 487(1) of the Law on Civil 
Procedure No 1/2000 irrespective of whether the case-law has been established 
before or after the appeal court delivers its judgement. For this reason, a question 
CAJASUR BANCO 
 
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of unconstitutionality has been raised before the Tribunal Constitucional (Spanish 
Constitutional Court), which will have to decide whether the provision applied is 
contrary to the Spanish Constitution of 1978 currently in force. 
Third: Infringement of the case-law of the Court of Justice 
By also establishing a directly binding relationship between the national case-law 
and the decision to be delivered and the referral of the case back to the originating 
court for a decision in accordance with that case-law, the Supreme Court has 
completely eliminated the concept of the European judge (EU judge responsible 
for procedural safeguards) that the Court of Justice itself establishes for matters 
that have been ceded and thus incorporated as law into the Spanish legal 
framework through EU legislation and the interpretation of that legislation given 
by the Court of Justice. 
The Court of Justice (in its judgment of [of] 21 December 2016, Joined Cases 
C-154/15, C-307/15 and C-308/15) has asserted the following (paragraph 74): 
‘In those circumstances, the referring courts, being bound for the 
purposes of the decisions to be given in the main proceedings by the 
interpretation of EU law given by the Court, must disapply, of their 
own motion, the temporal limitation which the Tribunal Supremo 
(Supreme Court) applied in its judgment of 9 May 2013, because that 
limitation does not appear to be compatible with that law (see, to that 
effect, judgments of 5 October 2010, Elchinov, C-173/09, 
EU:C:2010:581, paragraphs 29 to 32; of 19 April 2016, DI, C-441/14, 
EU:C:2016:278, paragraphs 33 and 34; of 5 July 2016, Ognyanov, 
C-614/14, EU:C:2016:514, paragraph 36; and of 8 November 2016, 
Ognyanov, C-554/14, EU:C:2016:835, paragraphs 67 to 70).’ 
In other words, the national court must decide by exercising its own authority and 
only in accordance with the binding nature of the interpretation to be given by the 
Court of Justice in relation to European Union law. However, by including a 
provision such as Article 487(1) as we have said, if the case-law of the Spanish 
Supreme Court were contrary to the interpretation given by the Court of Justice, it 
would mean that the former must necessarily be applied in accordance with 
Spanish legislation, whereas latter must be applied in accordance with EU 
legislation and case-law. 
Therefore, establishing a provision such as this by law contradicts the court’s 
discretionary power to decide by taking into account the hierarchy of sources of 
law. Furthermore, the Spanish Supreme Court’s decision, in the present case, to 
refer the proceedings back to the lower court in accordance with that provision 
and to limit that court’s judicial power to assess the evidence or European Union 
law solely on the basis of the case-law of the Supreme court is also an 
infringement of the binding interpretation of the Court of Justice. 
REQUEST FOR A PRELIMINARY RULING OF 11. 6. 2024 – CASE C-443/24 
 
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In these circumstances, the Court of Justice must be asked the following question: 
– Is a provision such as Article 487(1) of the Law on Civil Procedure 
No 1/2000, as amended by Royal Decree-Law No 5/2023, which 
establishes that the Spanish courts are bound by the case-law of the 
Spanish Supreme Court, without distinguishing whether that case-law 
might be contrary to the subject matter and interpretation given by the 
Court of Justice in matters falling within the competence of the 
European Union, compatible with the case-law of the Court of Justice? 
Fourth: The jurisdictional role of the Spanish Supreme Court 
Article 123(1) [of the] Spanish Constitution [of] 1978 states that the Supreme 
Court, which has jurisdiction throughout Spain, is the highest court in all 
jurisdictions. As the highest court, it does not only have a function based on 
upholding and protecting the law (especially its uniform interpretation), which is 
the role exclusively included in Article 487(1) of the Law on Civil Procedure as 
amended. If only this function existed, the rights of the parties would not be 
adequately protected because the determination of the relevant individual aspects 
of the procedure would not take place in that court. Rather, simply by application 
of a non-supplementing system of case-law, this would be determined by the court 
that delivered the decision, without taking into account the specific situation. 
This can be illustrated in the specific case that has been decided in that court in 
different steps: 
1.- The Supreme Court affirms that the case-law subsequent to the Provincial 
Court ruling has been infringed. 
2.- This case-law, the Supreme Court says, is based on the assumption that there 
is a settlement agreement that should not be taken into consideration, even if it is 
part of or a consequence of legal proceedings. 
3.- For this purpose, it tells us that we must take into account several judgments 
of the Supreme Court itself where it is held [that] the waiver is not valid because 
the bank failed to inform the customer (2021 judgments) and [that] knowledge of 
the Supreme Court judgment of 2015 – which established in a class action against 
the same entity that the floor term was invalid, ordering it to remove such terms – 
is not considered a widely known fact. 
4.- According to the Supreme Court, as explained for the first time in the 
judgment annulling the judgment of this court, there is a difference between the 
judgment that it itself delivered under number 241/2013 of 9 May 2013 and 
judgment 138/2015 of 24 March 2015, which also declared, as confirmation of the 
judgment of the Provincial Court, that the floor term was invalid, but for another 
credit institution. The difference is that knowledge of the former rather than the 
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latter had a noticeable effect. From this it seems to follow (and hence the ruling) 
that a document adduced on novation/settlement cannot be taken into account. 
5. The judgment of this court of 3 November 2020 confirms the judgment of 
the court of first instance, in which it is stated that there was already a pending 
procedure with the same claim, which was waived by signing a document. It is 
taken into consideration in both cases that there was a technical defence, namely a 
lawyer. What the Supreme Court is asking this court to do is to disregard that 
document and that procedure and, therefore, to assign no value or effect to them. 
In other words, it thus directly becomes a court that decides on the admissibility of 
evidence and not on the assessment that it may freely carry out in relation to its 
own case-law. 
6. The case-law applied in this case is based on the interpretation given by the 
Court of Justice in affirming the mandatory nature of Article 6(1) of Directive 
93/13/EEC, which states that consumers cannot, in principle, waive this 
protection, either by contract or by unilateral declaration, either directly or 
indirectly. It is made clear that this certainly applies prior to the resolution of any 
dispute on specific claims relating to the unfair nature of contractual terms. 
However, the Court of Justice has also clarified that, in court proceedings, after 
having been informed about the unfair nature of a contractual term, consumers 
may decide not to rely on this protection. In the Ibercaja case (judgment of the 
Court of Justice of 9 July 2020 – C-452/18), this question was already decided, 
with it being stated that ‘Article 6(1) of Council Directive 93/13/EEC of 5 April 
1993 on unfair terms in consumer contracts must be interpreted as not precluding 
a term in a contract concluded between a seller or supplier and a consumer, which 
might be found by a court to be unfair, from being the subject of a novation 
agreement between that seller or supplier and that consumer, whereby the 
consumer waives the effects that would result from that term being found to be 
unfair, provided that that waiver is the result of the consumer’s free and informed 
consent, which it is for the national court to verify’. As has already happened, this 
assessment is a matter for the national court and is an assessment of the case and 
of the evidence. In applying this subsequent case-law, the Supreme Court is 
saying that the court required to rule on the case should not assess certain 
evidence and that a general, abstract criterion should be applied to the case. This 
leads to the second question: 
 Are Article 6(1) of Directive 93/13/EEC and Article 47 of the Charter 
of Fundamental Rights of the European Union (2000/C-364/01) 
infringed by a case-law interpretation which, by that case-law 
interpretation, restricts the evidence which may be considered by the 
court that is to decide the case, by binding the decision of the court a 
quo to national case-law existing in other similar cases? 
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Fifth: Conclusion and basis for the need for a ruling 
The possibility of reaching a decision in this case will be different depending on 
whether it is stated that this case-law does or does not limit the court’s capacity 
(actual discretionary power) to decide, since, if it is compatible with the case-law 
of the Court of Justice, we will have to limit our judgement by excluding evidence 
and determining that case-law is valid without the need to compare it with the 
case-law of the Court of Justice. Where applicable, there is also the possibility for 
comparison if this is the solution given. Conversely, if it is determined that it 
should be rejected, we would understand that Article 487(1) of the Law on Civil 
Procedure No 1/2000 is incompatible, in consumer matters, with the case-law of 
the Court of Justice and, therefore, it would not apply to this case, which would be 
decided without excluding this documentary evidence and looking only at the 
case-law of the Court of Justice. 
In accordance with the foregoing, 
We hereby rule that a QUESTION be referred to the COURT OF JUSTICE 
OF THE EUROPEAN UNION for a PRELIMINARY RULING, with a copy 
of the proceedings to be sent also so that, once it has been admitted for 
processing, the Court can rule on the following questions if it deems them 
appropriate: 
1. Is a provision such as Article 487(1) of the Law on Civil Procedure 
No 1/2000, as amended by Royal Decree-Law No 5/2023, which establishes that 
the Spanish courts are bound by the case-law of the Spanish Supreme Court, 
without distinguishing whether that case-law might be consistent with the subject 
matter and interpretation given by the Court of Justice of the European Union in 
matters falling within the competence of the European Union, whether before or 
after that case-law was established, compatible with the case-law of the Court of 
Justice of the European Union in interpreting the provisions of Directive 
93/13/EEC? 
2. Are Article 6(1) of Directive 93/13/EEC and Article 47 of the Charter of 
Fundamental Rights of the European Union (2000/C-364/01) infringed by a case-
law interpretation by the Supreme Court which, by that case-law interpretation, 
restricts the evidence that may be considered by the court that is to decide the case 
and its assessment of that evidence, by binding the decision of the court a quo to 
national case-law existing in other similar cases? 
[…]