Opinion of the Advocate General — ECLI:EU:C:2021:617
Date: 2021-07-15
Language of the case: Spanish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the background 
1.- On 22 March 2006, the financial institution Banco de Caja España de 
Inversiones, Salamanca y Soria, S.A.U. (‘Banco Ceiss’) granted Ms L (‘the 
applicant’ or ‘the consumer’) a loan of EUR 120 000, secured by a mortgage, to 
purchase her family home. The borrower was to repay the loan over 30 years in 
360 monthly payments. The agreement comprised general terms and conditions 
drawn up by Banco Ceiss. 
2.- The interest rate on the loan was 3.350% per annum for the first year. At the 
end of that period a variable interest rate applied, which was [OR 3] 0.52% above 
the twelve-month Euribor rate. However, the agreement contained a clause 
stipulating that the interest rate on the loan would never fall below 3% per annum 
(the ‘floor clause’). When there was a significant fall in the Euribor rate in 2009, 
that clause prevented the loan rate from falling below 3% per annum. 
3.- In January 2016 the consumer lodged a claim against the bank in which she 
asked for the ‘floor clause’ to be declared void on the grounds that it was unfair 
due to a lack of transparency, because the bank had not given her sufficient 
information about the existence of the clause and its significance for the economic 
effect of the agreement.  
4.- In addition to seeking to have the ‘floor clause’ declared void, the borrower 
sought to have the bank repay all the amounts that had been overpaid under the 
clause. In the alternative, she requested that, if the bank was not ordered to repay 
the total amount, it should be required to repay the amounts received since 9 May 
2013. 
5.- Banco Ceiss opposed the claim in a written submission filed on 4 March 
2016. It argued that the ‘floor clause’ was not unfair, because the borrower had 
been informed of its inclusion in the agreement. 
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6.- The Court of First Instance gave judgment on 6 June 2016. It ruled that the 
‘floor clause’ was unfair due to a lack of transparency. But it only ordered Banco 
Ceiss to repay the borrower the sums received under the clause since 9 May 2013, 
plus interest, as it applied the case-law established by the Sala Primera del 
Tribunal Supremo (Civil Division of the Supreme Court) in judgment 241/2013 of 
9 May 2013. It also ordered Banco Ceiss to pay costs.  
7.- On 14 July 2016 Banco Ceiss filed an appeal against the judgment at first 
instance. In its appeal it challenged the order for costs against it, on the grounds 
that the claim had not been upheld in full, but only in part. The borrower opposed 
the appeal in a written submission filed on 20 July 2016. [OR 4] 
8.- Before the Provincial Court gave judgment in the appeal, on 21 December 
2016 the Court of Justice of the European Union gave judgment in joined cases 
C-154/15, C-307/15 and C-308/15 (EU:C:2016:980). In the operative part of that 
judgment the Court of Justice held that Article 6(1) of Directive 93/13/EEC 
precludes national case-law that temporally limits the restitutory effects connected 
with a finding of unfairness by a court to amounts overpaid under such a clause 
after the delivery of the decision in which the finding of unfairness is made. The 
national case-law referred to by the Court of Justice is that established in 
judgment 241/2013 of 9 May 2013 of the Civil Division of the Supreme Court. 
9.- The Provincial Court subsequently gave judgment in the appeal on 
13 January 2017. It upheld the appeal, on the grounds that the claim had been 
upheld only in part, and it set aside the order for costs made against Banco Ceiss 
in the judgment by the Court of First Instance. 
10.- In its judgment, the Provincial Court made no mention of the judgment of 
the Court of Justice of 21 December 2016 and did not alter the ruling in the 
judgment at first instance on the restitutory effects of the nullity of the unfair 
‘floor clause’, because that was not the subject of the appeal. 
11.- The borrower has filed an appeal in cassation with the Supreme Court 
against the judgment of the Provincial Court. In the appeal, she argues that, in not 
applying the case-law established in the judgment of the Court of Justice of 
21 December 2016 and not making an order of its own motion for repayment of 
all sums paid under the ‘floor clause’, the judgment is in breach of, among other 
provisions, Article 1303 of the Spanish Código Civil (Civil Code) (which 
regulates the restitutory effects connected with the nullity of obligations and 
contracts) read together with Article 6(1) of Directive 93/13/EEC (which 
establishes that unfair terms are not binding on consumers). [OR 5] 
12.- The respondent bank opposes the appeal. It has argued that what the 
consumer is seeking is in breach of the principio de congruencia (principle that 
there should be correlation between the claims put forward in the action and the 
rulings contained in the operative part), because the consumer did not lodge an 
appeal against the judgment at first instance in order to challenge the temporal 
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restriction on the restitutory effects of the nullity of the clause, and therefore it 
was not open to the Provincial Court to order that the repayment to be made 
following the ruling that the clause was unfair should extend to all sums paid. 
TWO.- EU law 
1.- The provision of EU law which gives rise to questions of interpretation over 
the consequences of the finding that the ‘floor clause’ is unfair is Article 6(1) of 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, which 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.’ 
2.- In the operative part of its judgment of 21 December 2016 in joined cases 
C-154/15, C-307/15 and C-308/15 (EU:C:2016:980), the Court of Justice of the 
European Union ruled as follows: 
‘Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts must be interpreted as precluding national case-law that 
temporally limits the restitutory effects connected with a finding of unfairness by 
a court, in accordance with Article 3(1) of that directive, in respect of a clause 
contained in a contract concluded between a consumer and a seller or supplier, to 
amounts overpaid under such a clause after the delivery of the decision in which 
the finding of unfairness is made.’ 
THREE.- National law relevant to the main proceedings 
1.- Article 1303 of the Spanish Civil Code establishes a duty of repayment 
where an obligation is declared void, stipulating that: [OR 6] 
‘When an obligation has been declared void, the contracting parties must restore 
to one another those things that formed the subject matter of the contract, together 
with the profits derived therefrom, and the price together with interest, without 
prejudice to the following articles.’ 
2.- Supreme Court judgment 241/2013 of 9 May 2013 
(ECLI:ES:TS:2013:1916) ruled that the ‘floor clauses’ contained in the general 
terms and conditions of certain contracts between consumers and the defendant 
banks in a class action were void due to a lack of transparency. However, it placed 
a temporal limit on the restitutory effects of the voiding of the clauses, in that it 
ruled that those effects did not apply to payments made before the date of 
publication of the judgment. Several subsequent judgments have endorsed that 
case-law. 
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3.- The judgment of the Court of Justice of 21 December 2016 ruled that the 
temporal limitation on the restitutory effects established in that case-law was 
contrary to Article 6(1) of Directive 93/13/EEC. As from its judgment 123/2017 
of 24 February 2017, the Civil Division of the Supreme Court has altered its case-
law and adjusted it to reflect the case-law in the judgment of the Court of Justice. 
4.- When the Court of Justice of the European Union delivered that judgment, 
the Spanish courts were dealing with tens of thousands of cases concerning the 
nullity of unfair terms, most of which concerned ‘floor clauses’. Some cases were 
still being heard at first instance, while others were at the appeal or cassation 
stage. In many of these proceedings, the application made by consumers, either in 
the principal claim or in the alternative, for repayment of amounts overpaid was 
limited to payments made after 9 May 2013. These applications reflected the case-
law established in judgment 241/2013 of 9 May 2013 of the Civil Division of the 
Supreme Court, as the Court of Justice had yet to deliver its judgment of 
21 December 2016. 
5.- That is the situation in the claim brought by the consumer in these 
proceedings, who applied for temporally limited repayment in the alternative to 
repayment in full. The consumer did not appeal the judgment at first instance that 
dismissed her principal claim and upheld only her claim [OR 7] in the alternative, 
at a time when the Court of Justice had yet to deliver its judgment of 21 December 
2016 and the court’s judgment accorded with national case-law. Only the 
defendant bank appealed, seeking to overturn the award for costs against it.  
6.- In other cases, consumers had lodged claims for repayment of all amounts 
overpaid but did not appeal against judgments that declared the clause void but 
placed a temporal limit on repayments of sums paid under the clause, due to the 
existence of the national case-law established by judgment 241/2013 of the Civil 
Division of the Supreme Court of 9 May 2013, which limited repayments to sums 
paid after that date, with the result that only the defendant bank appealed. 
7.- In proceedings where this has been the position, the question has often 
arisen as to whether consumers can alter their claim to reflect the judgment of the 
Court of Justice of 21 December 2016 and seek repayment of all amounts 
overpaid once they have already lodged their claim or accepted a judgment at first 
instance which limited the restitutory effect of the ‘floor clause’.  
8.- The question has also arisen as to whether — even if the consumer did not 
appeal against a judgment that placed a temporal limit on the restitutory effects 
connected with a finding of unfairness, because the aforementioned judgment of 
the Court of Justice had yet to be delivered, and it was only the financial 
institution that appealed — a court hearing an appeal after that Court of Justice 
judgment should make an order, even of its own motion, for repayment of all 
amounts overpaid, in accordance with the case-law established by the judgment of 
the Court of Justice of 21 December 2016. 
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9.- Spanish civil proceedings are governed by the principles of delimitation of 
the subject-matter of an action by the parties, time-barring of procedural steps, 
prohibition of mutatio libelli or modification of the claim, correlation between the 
claims put forward in the action and the rulings contained in the operative part 
(principio de congruencia) and, in the case of appeals, the principle of prohibition 
of reformatio in peius, which is closely linked to the principio de congruencia. 
10.- Article 216 of the Ley de Enjuiciamiento Civil (Code of Civil Procedure) 
provides that: [OR 8] 
‘Principle of party disposition. 
‘Civil courts before which cases are brought shall dispose of them on the basis of 
the facts, evidence and claims put forward by the parties, save where otherwise 
provided by law in specific cases.’ 
11.- Article 218(1) of the Code of Civil Procedure provides that: 
‘Completeness and congruence of judgments. Reasoning. 
‘1. Legal decisions must be clear and precise and must be commensurate with 
the requests and other claims of the parties, made in a timely manner in the course 
of the proceedings. Those decisions must contain the requisite declarations, find in 
favour of or against the defendant and settle all points in dispute which form the 
subject matter of the litigation. 
[…] The court, without departing from the cause of action by accepting elements 
of fact or points of law other than those which the parties intended to raise, must 
give its decision in accordance with the rules applicable to the case, even though 
they may not have been correctly cited or pleaded by the parties to the procedure.’ 
12.- Article 465(5) of the Code of Civil Procedure, which addresses appeals, 
provides that: 
‘Orders or judgments issued in appeals must rule solely on the points and matters 
raised in the appeal and, where applicable, in the written statements of opposition 
or challenge referred to in Article 461. Decisions may not be to the detriment of 
the appellant, unless the detriment is the result of upholding a challenge to the 
decision in question brought by the original respondent.’ 
13.- Article 412(1) of the Code of Civil Procedure states that: 
‘Once the subject matter of the proceedings has been established in the 
application, in the defence, and, as the case may be, in the counterclaim, the 
parties may not vary it at a later date.’ 
14.- The Spanish Constitutional Court has held that some of these principles, 
such as the prohibition of reformatio in peius and, in some regards, the principio 
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de congruencia, are rooted in the constitution, in the right to effective judicial 
protection recognised in Article 24 of the Spanish Constitution (which has its 
equivalent in Article 47 on the Charter of Fundamental Rights of the European 
Union). If courts were able, of their own motion, to alter the decision that has been 
challenged by the appellant, to the appellant’s detriment, this would act as a 
deterrent to exercising the right to the appeals lawfully [OR 9] established by law, 
which would be incompatible with the effective judicial protection which the 
courts are required to provide. 
15.- These procedural principles led the Provincial Court to rule solely on the 
issue raised by Banco Ceiss in its appeal. While no reasons are expressly given on 
this point, it is clear that the Provincial Court did not order the sums received by 
the financial institution under the ‘floor clause’ to be repaid in full because the 
consumer did not appeal against the judgment at first instance that ordered 
repayment of only the sums paid after 9 May 2013. 
16.- In her appeal in cassation, the consumer challenges that decision, arguing 
that, once the judgement of the Court of Justice of 21 December 2016 had been 
published, the Provincial Court should have applied the case-law in that judgment 
and should, of its own motion, have ordered all amounts paid under the ‘floor 
clause’ to be repaid, including amounts paid before 9 May 2013. 
17.- In that case, as in many other cases pending in the Spanish courts, there is a 
tension between the principle that unfair ‘floor clauses’ are not binding on 
consumers — which means that temporal limits should not be placed on the 
repayment of amounts overpaid — and the procedural principles of delimitation of 
the subject-matter of an action by the parties, time-barring, correlation between 
the claims put forward in the action and the rulings contained in the operative part 
and prohibition of reformatio in peius. 
FOUR.- Doubts of interpretation giving rise to the first question 
1.- The Supreme Court is referring this question to the Court of Justice of the 
European Union because it has doubts over the compatibility of the principles of 
delimitation of the subject-matter of an action by the parties, time-barring and 
prohibition of reformatio in peius laid down in Article 216 and Articles 218(1) 
and 465(5) of the Code of Civil Procedure with Article 6(1) of Directive 
93/13/EEC. 
2.- The Court of Justice has held that the prohibition of reformatio in peius is 
based on the principles of respect for the rights of the defence, legal certainty and 
protection of legitimate expectations (judgment of 25 November 2008, C-455/06, 
paragraph 47, EU:C:2008:650). [OR 10] 
3.- The Court of Justice has also held that consumer protection is not absolute, 
and that, under the principle of the institutional and procedural autonomy of the 
Member States, the procedural rules governing actions to safeguard an 
individual’s rights under EU law are determined by national law. But this 
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procedural autonomy cannot put obstacles in the way of the effectiveness of EU 
law. Nor may claims founded on rights conferred by EU law receive less 
favourable treatment than similar claims founded on domestic law. 
4.- As regards unfair terms, the judgment of the Court of Justice of 
21 December 2016 (joined cases C-154/15, C-307/15 and C-308/15) held that 
certain restrictions on the effectiveness of the principle that unfair terms are not 
binding on consumers were reasonable, such as restrictions arising from res 
judicata (paragraph 68 of the judgment) or laying down reasonable time limits for 
bringing proceedings (paragraph 69 of the judgment). 
5.- In recent judgments the Court of Justice has drawn attention to the 
importance, both in the legal order of the European Union and in national legal 
systems, of the principle of res judicata, because in order to ensure both stability 
of the law and legal relations and the sound administration of justice, it is 
important that judicial decisions which have become definitive after all rights of 
appeal have been exhausted or after expiry of the time limits provided for in that 
connection can no longer be called into question (judgment of 24 October 2018, 
C-234/17, EU:C:2018:853). Consequently, EU law does not require a national 
court to disapply domestic rules of procedure conferring finality on a judgment, 
even if to do so would make it possible to remedy a domestic situation which is 
incompatible with EU law (judgment of 29 July 2019, C-620/17, EU:C:2019:630). 
6.- Under Spanish law, in an appeal it is possible for the various rulings 
contained in a judgment to be challenged separately (Article [OR 11] 458(2) of 
the Code of Civil Procedure). If a ruling is not challenged by any of the parties, 
the appellate court cannot set it aside or alter it. This rule is in some respects 
similar to res judicata in terms of its underlying reasons and its purpose. 
7.- In that tension between procedural principles founded on the requirements of 
legal certainty, the sound administration of justice and respect for due process, 
linked to the right to effective judicial protection, on the one hand, and the 
principle of the effectiveness of EU law on the other, questions arise over the 
limits which the procedural rules established by the principles of delimitation of 
the subject-matter of an action by the parties, time-barring and prohibition of 
reformatio in peius place on the effectiveness of the principle that unfair terms are 
not binding on consumers. According to the ruling of the Court of Justice in the 
judgment of 21 December 2016, the latter principle is incompatible with the 
establishment of temporal limits on repayment in full of amounts overpaid by the 
consumer under an unfair term; but the principle is not absolute and is subject to 
limits linked to the sound administration of justice, such as res judicata or laying 
down reasonable time limits for bringing proceedings. 
8.- In terms of the appeal that gives rise to the question referred, those doubts 
specifically concern whether, once the Court of Justice had delivered its judgment 
of 21 December 2016, a court hearing proceedings in which only the defendant 
bank has appealed, and the consumer has not appealed against the judgment, 
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should order repayment of all amounts received by the bank under the unfair term, 
thereby placing the appellant in a worse position. 
OPERATIVE PART 
[OR 12] THE COURT ORDERS: In the light of the above, the Civil Division of 
the Supreme Court orders that the following question be referred to the Court of 
Justice of the European Union for a preliminary ruling: 
Does Article 6(1) of Directive 93/13/EEC preclude the application of the 
procedural principles of delimitation of the subject-matter of an action by the 
parties, correlation between the claims put forward in the action and the rulings 
contained in the operative part and prohibition of reformatio in peius that prevent 
the court seised of the appeal lodged by the bank against a judgment that placed a 
temporal limit on repayment of the amounts overpaid by the consumer under a 
‘floor clause’ subsequently declared void from ordering repayment in full of the 
said overpayments, thereby placing the appellant in a worse position, because the 
consumer has not appealed against the said limit? 
[…] 
[…] [closing formulas and signature]