Judgment;Summary — ECLI:EU:C:2024:362
Date: 2024-04-25
Language of the case: Spanish
Court formation: Ninth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

summary that, in accordance with the 
previous case-law of the CJEU, it was clear that the date on which the mortgage 
loan contract was concluded could not be the starting point of the limitation period 
and therefore the CJEU should be asked whether the limitation period for an 
action for recovery of sums wrongly paid in respect of costs was the date on 
which they became aware of the unfairness of the term as a result of the 
declaration that that term was invalid, or, if not, whether that date could coincide 
with any of the dates of the judgments in which the Tribunal Supremo (Supreme 
Court) held that terms of that kind are unfair. 
FOURTH.– Banco Santander, S.A., defendant and respondent, […] submitted, in 
summary, that: (i) a request for a preliminary ruling was not necessary because the 
case-law of the CJEU is sufficiently clear on the matter; (ii) in the alternative, the 
order for reference should state, in relation to Articles 6(1) and 7(1) of Directive 
93/13/EEC, that the limitation period for the action was 15 years when the 
contract was concluded and that period may be interrupted repeatedly merely by 
an out-of-court claim. 
LAW 
FIRST.– Subject matter of the dispute 
1.– On 29 June 1999, Mr GP and Ms BG, who were consumers, entered into a 
mortgage loan agreement with Banco Santander, S.A., which included a term 
stipulating that the borrowers were to pay all costs arising under the contract. 
2.– On 28 October 2017, Mr GP and Ms BG brought an action against the lender, 
in which, in so far as is relevant for the present purposes, they sought a declaration 
that the term in question was invalid and the restitution of the sums wrongly paid 
under that term. 
BANCO SANTANDER 
 
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3.– The defendant lodged a defence, following which the judgment at first 
instance upheld the action, declared the term invalid and ordered the lender to 
repay the borrowers various sums which they had paid in respect of notarial costs, 
land registration costs and management costs, plus statutory interest from the date 
on which the consumers had made those payments. 
4.– The Audiencia Provincial (Provincial Court) allowed the bank’s appeal in part 
and ruled that the action for restitution of the sums paid in respect of costs had 
become time-barred; it therefore absolved the lender of liability in the 
proceedings, without making an order as to costs at either instance. The Audiencia 
Provincial (Provincial Court) held that the date on which the limitation period for 
the action for restitution started to run was the date on which the consumers had 
made the undue payments in 1999, from which it followed that the action was 
time-barred since more than 15 years had elapsed when they brought the action. 
5.– The applicants appealed on a point of law against the judgment of the 
Audiencia Provincial (Provincial Court). 
SECOND.– Issue in contention in the main proceedings 
It is disputed, and important to determine, when the limitation period starts for an 
action for the restitution of sums paid by the consumers to a third party pursuant 
to an unfair term which requires the borrower to pay all the costs incurred as a 
result of the arrangement of a mortgage loan. 
THIRD.– Provisions of European Union law 
1.– Article 6(1) of Council Directive 93/1[3]/ EEC of 5 April 1993 on unfair terms 
in consumer contracts (OJ 1993 L 347, p. 1) provides: 
‘1. 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.– Article 7(1) of Directive 93/13/EEC 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.’ 
3.– As regards the limitation period for an action to recover sums wrongly paid 
pursuant to an unfair term, within the meaning of that directive, the Court of 
Justice has held that, in the interests of legal certainty, it is compatible with EU 
law to lay down reasonable time limits for bringing proceedings (judgment of 
21 December 2016, Joined Cases C-154/15, C-307/15 and C-308/15). The Court 
has also held that the limitation period for such an action is a matter for the 
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domestic legal order of the Member States in accordance with the principle of the 
procedural autonomy of the Member States. Those rules must not be less 
favourable than those governing similar domestic actions (principle of 
equivalence); nor may they be framed in such a way as to make it in practice 
impossible or excessively difficult to exercise the rights conferred by EU law 
(principle of effectiveness) (judgment of 10 June 2021, Cases C-776/19 to 
C-782/19). 
FOURTH.– National law 
1.– Article 1964(2) of the Civil Code (Código Civil) provides: 
‘Personal actions not subject to a particular limitation period shall become time-
barred after five years from the date on which performance of the obligation 
becomes enforceable.’ 
That article was amended by Law 42/2015 of 5 October, which reduced the 
limitation period from 15 years to five years. In other words, when the contract 
was concluded in 1999, the limitation period was 15 years. 
2.– Article 1969 of the Civil Code provides: 
‘In the absence of specific provision to the contrary, the limitation period for all 
types of legal action shall begin to run from the date on which the action may 
properly be brought.’ 
3.– Article 1895 of the Civil Code provides: 
‘Where a thing to which there is no entitlement is received and that thing was 
supplied but not due in error, the obligation to return it arises.’ 
For its part, the first paragraph of Article 1896 of the Civil Code provides: 
‘Anyone who accepts an undue payment must, if they have acted in bad faith, pay 
statutory interest in the case of capital, or the profits received or due where these 
are produced by the item received.’ 
4.– Article 1303 of the Civil Code provides: 
‘Where 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 plus interest, subject to the 
provisions of the following articles.’ 
5.– Article 1973 of the Civil Code provides: 
‘The limitation period for actions is interrupted by the commencement of an 
action before the courts, by an out-of-court claim by the creditor, or by any act of 
recognition of the debt by the debtor.’ 
BANCO SANTANDER 
 
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In relation to that provision, it should be clarified that the limitation period may be 
interrupted as many times as the person having the right to bring an action 
considers opportune and that, once the limitation period has been interrupted, it 
begins to run again in its entirety without account being taken of the time used. 
6.– Proceedings have frequently been brought before the Tribunal Supremo 
(Supreme Court) on the issue of whether a judgment which, in addition to 
declaring a contract invalid, orders that the parties be restored to the positions they 
were in prior to the performance of the invalid contract, is made ultra petita where 
such a form of order was not expressly sought in the application (particularly if 
the applicant did not propose to return payments or items received by him under 
the contract which he claims is invalid). In such cases, this court has held that a 
judgment which orders such restitution when it was not sought is not made ultra 
petita because the restoration of the parties to the position they were in prior to the 
performance of the contract, together with the profits derived therefrom, and the 
price plus interest, as provided for in Article 1303 of the Civil Code, does not 
need to be expressly applied for by the party concerned and must be ordered by 
the court when it declares the contract invalid (for example, judgments 843/2011 
of 23 November and 485/2012 of 18 July). 
7.– On the other hand, proceedings have rarely been brought before this this court 
on the issue of the limitation period for an action for the restoration by the parties 
to one another of things supplied under a contract in respect of which an 
application for a declaration of invalidity has been made in proceedings. The 
explanation possibly lies in the fact that, before the amendment of Article 1964 of 
the Civil Code by Law 42/2015 of 5 October, the limitation period for such an 
action was 15 years and it was therefore straightforward, in temporal terms, for 
the defendant to invoke the limitation period for an action for restitution. 
8.– However, on the few occasions that that issue has come before it, this court 
has distinguished between an action for a declaration of invalidity of a contract, 
which does not become time-barred in the case of an action for a declaration of 
absolute invalidity, and an action for the restoration of the things and the price 
supplied by the parties in performance of the invalid contract, which is a personal 
action subject to the limitation period stipulated in Article 1964 of the Civil Code, 
which, prior to 2015, was 15 years and is now five years. 
9.– In the judgment of 27 February 1964 and more recently in judgment 747/2010 
of 30 December, this court differentiated between an action for a declaration of 
absolute invalidity of a contract, which this court held cannot become time-barred, 
and an action for the restitution of payments made pursuant to an invalid contract, 
to which this court applied the rules on the limitation period for personal actions. 
10.– Accordingly, the application of a limitation period to an action for restitution 
of payments made by a consumer under an unfair term is not only compatible with 
the principle of legal certainty, which is one of the guiding principles of EU law, 
but is also compatible with the principle of equivalence. 
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11.– The same reasoning is applicable, since there is an identical legal ground, to 
situations in which restitution is not to be made between the contracting parties 
because the undue payments were made to a third party, as occurred in the present 
case in which the recipients of the undue payments made by the consumers under 
the unfair term were third parties (the notary, the land registrar and the manager) 
and not the party responsible for the invalidity (the lender using the standard 
term); therefore, an action for restitution was classified by the Tribunal Supremo 
(Supreme Court) as an action derived from the receipt of something that was not 
due, as provided for in Article 1896 of the Civil Code (transcribed above) 
(judgment 725/2018 of 19 December). 
12.– Based on that legislation and case-law, the issue to be resolved is the date 
from which the statutory limitation period starts to run for an action for the 
restitution of payments made under an unfair term. The principle of legal certainty 
also applies to that issue, since it is settled case-law of the CJEU that, where 
Member States implement EU law, they are required to respect the general 
principles of that law, which include the principles of legal certainty and of the 
protection of legitimate expectations (judgment of 15 April 2021, C-798/18 and 
[C-]799/18, and the case-law cited). 
FIFTH.– Need for a request for a preliminary ruling 
1.– The case-law of the CJEU on the limitation period for claims for restitution 
made after a declaration that a term in a consumer contract is unfair is summarised 
in the judgment of 10 June 2021, BNP Paribas Personal Finance, Joined Cases 
C-776/19 to C-782/19, paragraphs 26 to 48. That judgment summarises the 
judgments of 9 July 2020, Raiffeisen Bank SA, Joined Cases C-698/1[8] and [C-
]699/18; of 16 July 2020, Joined Cases C-224/19 and C-259/19, Caixabank SA 
and BBVA; and of 22 April 2021, Profi Crédit Slovakia, C-485/19. 
2.– As regards the starting point of the limitation period, the judgments of the 
CJEU of 16 July 2020, Caixabank SA and BBVA; of 22 April 2021, Profi Crédit 
Slovakia; and of 10 June 2021, BNP Paribas Personal Finance refer explicitly to 
cases examining the compatibility of the date on which time starts to run provided 
for in national law with the interpretation of EU law. 
In the judgment of 16 July 2020, Caixabank SA and BBVA, paragraph 88, the 
CJEU held that a period which begins to run ‘from the conclusion of the contract’ 
is not compatible with the principle of effectiveness. In the judgment of 10 June 
2021, BNP Paribas Personal Finance, Joined Cases C-776/19 to C-782/19, the 
Court of Justice was even more explicit in paragraph 47: 
‘The application of a five-year limitation period, such as that at issue in the main 
proceedings, to a claim brought by a consumer for repayment of sums paid but not 
due, on the basis of unfair terms for the purposes of Directive 93/13, which begins 
to run from the date of acceptance of the loan offer, is not capable of affording 
that consumer effective protection, since that period is likely to have expired even 
BANCO SANTANDER 
 
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before the consumer becomes aware of the unfair nature of a term in the contract 
at issue. Such a period makes it excessively difficult for the consumer to exercise 
the rights deriving from Directive 93/13 and therefore infringes the principle of 
effectiveness (see, by analogy, judgments of 9 July 2020, Raiffeisen Bank …, 
paragraphs 67 and 75, and of 16 July 2020, Caixabank and [BBVA], 
paragraph 91).’ 
The CJEU has held that it is also incompatible with Directive 93/13/EEC to set the 
date on which the limitation period starts to run for an action for restitution as the 
date on which ‘unjustified enrichment’ occurred or, in short, the date on which the 
payment was made. That was in the judgment of 22 April 2021, Profi Crédit 
Slovakia, C-485/19, paragraphs 51 to 52 and 60 to 66. The reason is that it is an 
objective period which may elapse without the consumer becoming aware of the 
unfair nature of the term and it is therefore contrary to the principle of 
effectiveness. 
The same occurs in respect of a period which begins to run on the date of full 
performance of the contract: judgment of 9 July 2020, Raiffeisen Bank SA, 
paragraphs 65, 67 and 75. 
3.– If, in line with those previous rulings of the Court of Justice, we exclude the 
approach which takes the starting point of the limitation period to be the day on 
which the undue payments were made pursuant to the term found to be unfair, two 
options remain in order for the commencement date to be compatible with 
Articles 6(1) and 7(1) of Directive 93/13/EEC: 
a) The date on which the limitation period for bringing an action for restitution 
starts to run is the date of the judgment declaring that the term is invalid. That 
approach may conflict with the principle of legal certainty, which is one of the 
principles of the EU legal order: in practice, this means that an action for 
restitution is not subject to a time limit because the limitation period cannot start 
to run until an action (for a declaration of invalidity) which is not subject to a time 
limit under national law, since it is concerned with absolute invalidity, has been 
upheld. Furthermore, the principle of legal certainty could be seriously 
compromised if it were to lead to claims relating to contracts which were 
performed and terminated decades ago. 
b) The date on which the limitation period starts to run is the date on which the 
Tribunal Supremo (Supreme Court) gave a number of uniform judgments in 
which it found that terms pursuant to which a consumer was liable for payment of 
all the costs arising under a contract were unfair and decided how such costs 
should be allocated once the term had been removed from the contract. In addition 
to the case-law of the Tribunal Supremo (Supreme Court), this could equally be 
said with regard to that of the CJEU in which it held that an action for restitution 
may be subject to a limitation period. 
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That approach, which does not conflict with the rule that an action for restitution 
is subject to a limitation period, leads to the difficulty that it may be contrary to 
the principle of effectiveness because it is doubtful whether an average consumer, 
who is reasonably observant and circumspect, would be aware of the case-law of 
the Tribunal Supremo (Supreme Court) or the Court of Justice on the subject. 
4.– Since the approach which is taken may affect the interpretation of 
Articles 6(1) and 7(1) of Directive 93/13/EEC and observance of the principle of 
legal certainty which underlies EU law (judgments of the Court of Justice of 
13 January 2004, Kühne & Heitz (C-453/00) and of 15 July 2004, Willy Gerekens 
(C-459/02)), in addition to being decisive for the judgment, it is appropriate to 
make a request for a preliminary ruling to the Court of Justice. 
On those grounds, 
OPERATIVE PART 
THE CHAMBER DECIDES: To refer to the Court of Justice of the European 
Union, under Article 267 TFEU, the following questions for a preliminary ruling 
on the interpretation of Articles 6 and 7(1) of Council Directive 93/13/EEC of 
5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and of 
the principle of legal certainty which underlies the EU legal order: 
1.– Is it compatible with the principle of legal certainty to interpret Articles 6(1) 
and 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts as meaning that the limitation period for an action to recover 
payments made pursuant to an unfair term does not begin to run until that term has 
been declared invalid by a final judgment? 
2.– If such an interpretation is incompatible with the principle of legal certainty, 
do Articles 6(1) and 7(1) of Council Directive 93/13/EEC preclude an 
interpretation according to which the starting point of the limitation period is the 
date of the judgments of the Tribunal Supremo (Supreme Court) laying down 
case-law on the effects of restitution (judgments of 23 January 2019)? 
3.– If such an interpretation is incompatible with Articles 6(1) and 7(1), do those 
articles preclude an interpretation according to which the starting point of the 
limitation period is the date of the judgments of the Court of Justice holding that 
an action for restitution may be subject to a limitation period (essentially, the 
judgment of 9 July 2020, Raiffeisen Bank SA, Joined Cases C-698/10 and 699/18, 
and the judgment of 16 July 2020, Caixabank SA, Joined Cases C-224/19 and 
C-259/19, which confirmed the former)? 
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