Judgment;Abstract — ECLI:EU:C:2024:686
Date: 2024-09-05
Language of the case: Spanish
Court formation: Fourth Chamber
Subject matter: Right of establishment;Consumer protection;Approximation of laws;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-498/22 – 1 
Case C-498/22  
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: 
21 July 2022 
Referring court:  
Tribunal Supremo (Spain) 
Date of the decision to refer:  
19 July 2022 
Appellants in the appeal in cassation: 
Novo Banco, S. A. – Sucursal en España  
Banco de Portugal 
Fundo de Resolução 
Respondent in the appeal in cassation: 
C. F. O. 
  
Subject matter of the main proceedings 
Mortgage loan contract concluded by a Spanish consumer with the Spanish branch 
of a Portuguese credit institution – ‘Floor’ clauses which have been declared 
unfair – Contractual subrogation by operation of law – Order requiring the 
Spanish branch of the subrogated institution to reimburse to the consumer the 
sums paid under a ‘floor’ clause contained in the contract – Appeal and appeal in 
cassation 
Subject matter and legal basis of the request 
Successive decisions on reorganisation measures adopted by the home Member 
State of a credit institution – Directive 2001/24/EC – Creation of a ‘bridge bank’ – 
Measures separating the assets from the liabilities in the legal relationship which 
the institution held with individuals in the host Member State – Measures not 
published as required by Directive 2001/24 – Subsequent conduct by the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-498/22 
 
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institution subrogated to that legal relationship – Legitimate expectation of the 
individuals with regard to the scope of the measures – Recognition of the 
effectiveness of the decisions by the host Member State – Interpretation of 
Directive 2001/24 – Compatibility with the fundamental right to effective judicial 
protection, the general principle of legal certainty, the general principle of the 
prohibition of discrimination on grounds of nationality, the fundamental right to 
property and consumer protection legislation 
Questions referred for a preliminary ruling 
1. Is an interpretation of Article 3(2) of Directive 2001/24 which entails the 
recognition in a host Member State of the effects of a decision by the competent 
administrative authority of the home Member State which has not been published 
in the manner required by Article 6(1) to (4) of Directive 2001/24 compatible with 
the fundamental right to effective judicial protection under Article 47 of the 
Charter of Fundamental Rights of the European Union (‘the Charter’), the general 
principle of legal certainty and the principle of equality and the prohibition of any 
discrimination on grounds of nationality under Article 21(2) of the Charter?  
2. Is an interpretation of Article 3(2) of Directive 2001/24 which entails the 
recognition in a host Member State of the effects of a decision by the competent 
administrative authority of the home Member State which excluded certain 
obligations and responsibilities from the transfer to a ‘bridge bank’ of the ordinary 
business and a number of the assets and liabilities of the bank to which the 
reorganisation measures apply compatible with the fundamental right to effective 
judicial protection under Article 47 of the Charter and the general principle of 
legal certainty, where the subsequent conduct of the ‘bridge bank’, acting under 
the control of a public authority applying EU law, itself created among customers 
in the host Member State a legitimate expectation that the ‘bridge bank’ had 
assumed the liabilities corresponding to the responsibilities and obligations which 
the bank forming the subject of the reorganisation measure held in relation to 
those customers? 
3. Is an interpretation of Article 3(2) of Directive 2001/24 which entails the 
recognition in a host Member State of the effects of a decision of the competent 
administrative authority of the home Member State which transfers to a ‘bridge 
bank’ the creditor position under a mortgage loan contract but leaves with the 
failing bank the obligation to reimburse to the consumer borrower the sums 
collected pursuant to an unfair term in that contract compatible with the 
fundamental right to property under Article 17 of the Charter, the principle of a 
high level of consumer protection under Article 38 of the Charter, Article 6(1) of 
Directive 1993/13/EEC of 5 April 1993 and the general principle of legal 
certainty? 
Provisions of European Union law and case-law relied on 
Case-law 
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Judgment of 30 May 2013, Asbeek Brusse and de Man Garabito, C-488/11, 
EU:C:2013:341 
Judgment of 21 December 2016, Gutiérrez Naranjo and Others, Joined Cases 
C-154/15, C-307/15 and C-308/15, EU:C:2016:980 
Judgment of 8 May 2019, PI, C-230/18, EU:C:2019:383 
Opinion of 19 November 2020, Banco de Portugal and Others, C-504/19, 
EU:C:2020:943 
Judgment of 29 April 2021, Banco de Portugal and Others, C-504/19, 
EU:C:2021:335 
Judgment of 5 May 2022, BPC Lux 2 and Others, C-83/20, EU:C:2022:346 
Judgment of 5 May 2022, Banco Santander, C-410/20, EU:C:2022:351 
Provisions 
Treaty on the Functioning of the European Union: Article 122 
Charter of Fundamental Rights of the European Union: Articles 17, 21, 38, 47, 51 
and 52 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts: Article 6 
Directive 2001/24/EC of the European Parliament and of the Council of 4 April 
2001 on the reorganisation and winding up of credit institutions: recitals 11 and 
12; Articles 1, 2, 3, 4, 6 and 13 
Council Regulation (EU) No 407/2010 of 11 May 2010 establishing a European 
financial stabilisation mechanism 
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 
Case-law of the European Court of Human Rights (ECtHR) relied on 
Judgment of 20 November 1995, Pressos Compañía Naviera, S. A., and Others v. 
Belgium, CE:ECHR:1995:1120JUD001784991 
Judgment of 19 March 1997, Hornsby v. Greece, 
CE:ECHR:1997:0319JUD001835791 
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Judgment of 26 February 2002, Del Sol v. France, 
CE:ECHR:2002:0226JUD004680099 
Judgment of 30 November 2004, Öneryildiz v. Turkey, 
CE:ECHR:2004:1130JUD004893999 
Judgment of 11 January 2007, Anheuser-Busch Inc. v. Portugal, 
CE:ECHR:2007:0111JUD007304901 
Provisions of national law relied on 
National law of the host Member State (Spain) 
Ley 6/2005 de 22 de abril, sobre saneamiento y liquidación de las entidades de 
crédito (Law 6/2005 of 22 April 2005 on the reorganisation and winding up of 
credit institutions): Article 19. This legislation transposes Directive 2001/24 into 
Spanish law. 
Real Decreto-ley 1/2017, de 20 de enero, de medidas urgentes de protección de 
consumidores en materia de cláusulas suelo (Royal Decree-Law 1/2017 of 
20 January 2017 on urgent measures to protect consumers in matters relating to 
‘floor’ clauses): Articles 1, 2 and 3 
National law of the home Member State (Portugal) 
Regime Geral das Instituições de Crédito e Sociedades Financeiras (General 
Regulatory Framework for Credit Institutions and Finance Companies). This 
legislation transposes Directive 2001/24 into Portuguese law. 
Various decisions adopted by the Banco de Portugal (central bank of Portugal) on 
‘resolution measures’ in respect of the Portuguese institution Banco Espírito 
Santo, S. A.: in particular, those of 3 August 2014, 11 August 2014, 13 May 2015 
and 29 December 2015 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Portuguese institution Banco Espírito Santo, S. A. (‘BES’) had a very 
significant commercial presence in Spain through its branch there (‘BES Spain’). 
2 In 2006, C. F. O., a consumer, took out with one of the agencies of that branch a 
mortgage loan containing a ‘floor’ clause. 
3 In 2013, the Tribunal Supremo de España (Supreme Court, Spain) (the referring 
court) declared certain ‘floor’ clauses used by other banks to be unfair because not 
transparent. C. F. O. asked BES Spain to refrain from applying the ‘floor’ clause 
in his loan; BES Spain did so with effect from the following month. 
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4 In the meantime, in August 2014, as a result of the difficulties being experienced 
by BES, the Banco de Portugal began to adopt a number of decisions on the 
reorganisation of that institution by means of ‘resolution measures’. 
5 The first of those decisions was to set up a ‘bridge bank’ by the name of Novo 
Banco, S. A. (‘NB’), to which part of BES’ business was transferred. 
6 Among the items transferred by that decision was the mortgage loan taken out by 
C. F. O. Consequently, Novo Banco, S. A., Sucursal en España (‘NB Spain’), 
became C. F. O’s mortgagee and began collecting the repayments. 
7 The second of those decisions made clear, however, that certain responsibilities or 
contingencies would not be transferred to NB but would remain within the legal 
sphere of BES. 
8 During that same year (2014), the Banco de España (central bank), acting in 
accordance with Law 6/2005, published in the Boletín Oficial del Estado (Official 
State Gazette) (BOE) a very short notice mentioning the communication 
concerning the reorganisation measures which had been received from the Banco 
de Portugal, and stating that there had been a ‘partial’ transfer of business to NB, 
which would carry on BES’ ‘ordinary business without interruption’, and that, 
consequently, BES Spain would become a branch of NB. 
9 In late 2015, the Banco de Portugal clarified the status of the reorganisation by 
adopting further decisions, explaining that the transfer of BES’ business to NB did 
not include the ‘claims and indemnities relating to the alleged annulment of 
certain terms in loan contracts’. 
10 Neither the 2014 decisions nor the 2015 decisions were published in Spain as 
required by Article 6 of Directive 2001/24, which is to say published in extracts in 
the Official Journal of the European Union (OJEU) and in two national 
newspapers in each host Member State specifying, in the official language or 
languages of that State, the purpose and legal basis of the decisions taken, the time 
limits for lodging appeals, the date of expiry of those time limits and the contact 
details of the authorities competent to hear an appeal. 
11 In 2016, proceedings to wind up BES were instituted in Portugal. There is nothing 
to indicate that the publications required by Article 13 of Directive 2001/24 took 
place in Spain. 
12 In early 2017, C. F. O. made an out-of-court claim requesting NB Spain to 
reimburse the sums he had paid to BES Spain under the ‘floor’ clause in his 
contract.  
13 NB Spain refused to make the reimbursement. As it had an obligation under Royal 
Decree-Law 1/2017 to explain the reasons for its refusal, it stated that ‘the bank 
[had] acted with full transparency in providing information […] in enough time 
ahead of signature’ of the contract. 
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14 Later in 2017, C. F. O. brought an action against NB Spain seeking a declaration 
as to the nullity (because unfair) of the ‘floor’ clause in the contract which he had 
signed with BES Spain and an order requiring NB Spain to reimburse to him the 
sums paid pursuant to that clause. 
15 NB Spain raised a plea of lack of standing to be sued: it argued that any claim that 
might arise in favour of the consumer on grounds of nullity had not been 
transferred from BES to NB by the Banco de Portugal in its decisions. 
16 The Juzgado de Primera Instancia (Court of First Instance) and, on appeal, the 
Audiencia Provincial (Provincial Court) dismissed that plea and upheld the 
consumer’s action. 
17 The Provincial Court used four arguments, which are common in decisions given 
by the Spanish courts in the multitude of cases involving BES Spain and NB 
Spain. First: by virtue of its subrogation to the contract concluded by BES Spain, 
NB Spain has standing both to perform that contract and to be sued. Second: when 
NB Spain responded to the out-of-court claim, it did not argue that it lacked 
standing to be sued on the basis of the decisions adopted by the Banco de Portugal 
or urge the consumer to claim against BES in respect of the sums paid prior to the 
subrogation. Third: there is nothing to indicate that the 2015 decisions were 
entered in the Commercial Register or published. Fourth: the applicable case-law 
is that of the Supreme Court to the effect that, in the context of transfers of 
banking business, it is not permissible for creditor positions to be assigned but for 
responsibilities and indemnities arising from the annulment of contracts to be 
excluded. 
18 In 2019, the Banco de España, acting in accordance with Law 6/2005, published 
in the BOE another notice mentioning a new communication from the Banco de 
Portugal in relation to the reorganisation measures set out in the 2014 and 2015 
decisions. 
19 That notice too did not fulfil the requirements laid down in Directive 2001/24: it 
did contain an extensive transcript of the measures in question, but it did not 
provide information on the time limits for appeals (dates) or the contact details of 
the authorities competent to hear an appeal. 
20 NB Spain brought an appeal in cassation against the judgment of the Provincial 
Court before the Supreme Court (the referring court). The latter allowed the 
Banco de Portugal and the public entity Fundo de Resolução (Resolution Fund) to 
participate, in support of the form of order sought by NB Spain, as interested 
parties. The Resolution Fund is itself answerable to the Banco de Portugal and 
holds 25% of NB’s capital. 
The essential arguments of the parties in the main proceedings 
21 As in other cases concerning BES Spain which are pending before Spanish courts, 
NB Spain claims that it lacks standing to be sued, on the ground (notwithstanding 
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that it is carrying on the former institution’s banking business in the same offices 
and with the same employees) that the liability forming the subject of the action 
was not transferred to it under the ‘resolution measures’ in respect of the Banco de 
Portugal and that Directive 2001/24 requires the Spanish courts to recognise the 
effectiveness of those measures. 
22 C. F. O. assented to the making of the present request for a preliminary ruling by 
the referring court. NB Spain claimed that the request was ‘inadmissible’. The 
Banco de Portugal and the Resolution Fund made submissions to assist with the 
correct formulation of the request. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
23 In general terms, the referring court states that the request for a preliminary ruling 
is concerned with the conformity of the interpretation of Directive 2001/24 with 
certain fundamental rights and general principles of EU law. It notes that that 
subject matter comes within the scope of EU law and cites in support of that 
assertion the judgment in Case C-83/20. 
24 It also notes the grounds for making the request: the questions are relevant to the 
outcome of the dispute, there is no judgment in which the Court of Justice has 
interpreted EU law in this regard, the interpretation of that law does not provide 
an obvious answer and the judgment it will give will not be open to appeal. 
25 Next, it states that it has chosen to make a request for a preliminary ruling in the 
present case because it exemplifies a number of cases of its type and that the 
proceedings in the appeals in those other cases have been stayed pending the 
judgment of the Court of Justice in this case. 
26 More specifically, the referring court puts forward three arguments, one per 
question referred. 
27 In the first place, it addresses the significance of the fact that the ‘resolution 
measures’ (on which the exclusion of certain liabilities from the transfer between 
BES and NB was based) were not published in Spain, and states the following. 
28 The measures adopted by the Banco de Portugal in relation to the institution BES 
and the creation of NB are reorganisation measures for the purposes of Directive 
2001/24 (as confirmed by the judgment in Case C-504/19). On being deprived of 
its assets, BES became a failing bank. 
29 Where the reorganisation is likely to affect third parties outside the home Member 
State of the institution concerned (because that institution has branches in one or 
more host Member States) and the reorganisation is open to appeal in the home 
Member State, Directive 2001/24 obliges the home Member State to publish the 
measures concerned in the OJEU and in two national newspapers in each host 
Member State in the language or languages of the relevant State. That publication 
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must provide the necessary information on the measures in question and the 
appeals available. 
30 In the present case, no such publication in respect of BES took place in Spain. 
31 The publication carried out by the Banco de España in 2014 did not fulfil the 
requirements of Directive 2001/24. It was too succinct and even misleading as 
regards the seamless continuity between BES and NB. For its part, the publication 
carried out by the Banco de España in 2019 contained sufficient information on 
the reorganisation measures but not on the appeals available (which information 
would have been out of time by then anyway), and came after the start of the 
dispute in the main proceedings. 
32 According to the Opinion in Case C-504/19, at the hearing held in that case, it was 
stated that the Spanish press had reported extensively on the reorganisation of 
BES and that that enabled certain Spanish investors to appeal against those 
measures in Portugal. 
33 The documentation provided by the Banco de Portugal itself in this case, however, 
confirms that the information published by the Spanish press on the reorganisation 
(including on the liabilities excluded from the transfer between BES and NB) was 
generic. What is more, that information included statements by persons involved 
to the effect that customers would not be affected and giving the impression that 
there would be full continuity between BES and NB. 
34 The inadequacy of that information is corroborated by the very fact that, in 
Portugal, only six appeals were brought by Spaniards, notwithstanding the large 
number of persons in Spain affected by the reorganisation of BES. 
35 It is true that, according to Directive 2001/24, a reorganisation will be effective in 
relation to creditors whether or not it has been disclosed to the public. However, 
that provision probably seeks to ensure the effectiveness of the measures 
concerned in urgent situations in which time is of the essence. It is doubtful 
whether that provision would allow the effects of the measures on the rights of 
customers and the specific means of redress available to go unpublished for as 
long as they did in this case. 
36 Furthermore, nor was the opening of the proceedings to wind up BES published in 
accordance with the requirements of Directive 2001/24 in Spain. This prevented 
Spanish creditors from filing their claims in those proceedings. 
37 The Banco de Portugal argues that it published the measures in question (or at 
least part of its decisions) in accordance with the requirements of Directive 
2014/59, which was already in force at that time, and that it published them on the 
internet in both Portuguese and English. 
38 The Opinion in Case C-504/19, however, raises doubts about the applicability of 
Directive 2014/59 to this case. In any event, moreover, Directive 2014/59 does not 
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alter the obligation to publish which Directive 2001/24 imposes in situations such 
as that in this case. 
39 What is more, Directive 2001/24 itself justifies that obligation to publish on the 
ground that it is necessary to avoid (even indirect) discrimination on the basis of 
nationality as between creditors in the home Member State and creditors in the 
host Member State. 
40 Furthermore, that requirement to publish is also founded on the principle of legal 
certainty: the persons concerned must have a precise knowledge of their rights and 
obligations in order to be able to take appropriate action in response to the 
measures concerned. The Court of Justice has held that, where such measures are 
liable to have financial consequences, the principle of legal certainty must be 
observed all the more strictly (judgment in Case C-504/19). 
41 Publication also supports effective judicial protection, inasmuch as it allows an 
appeal to be brought against the authority which adopts the ‘resolution measures’. 
This is demonstrated in the case-law of the ECtHR, which states that the 
possibility of appeal must not be merely ‘theoretical or illusory’. 
42 As a result of the failure to comply with the requirement to publish, Spanish 
customers have taken legal action against NB Spain without actually knowing the 
measures adopted by the Banco de Portugal, and have therefore been surprised by 
the plea of lack of standing to be sued, which is based on the non-transfer of 
certain liabilities from BES to NB. 
43 According to the case-law of the Court of Justice, however, the right to effective 
judicial protection requires that the person concerned should have full knowledge 
of the facts of the case before deciding whether to take legal action. 
44 For all the foregoing reasons, it is doubtful whether Article 3(2) of Directive 
2001/24 can be interpreted as meaning that decisions adopted by the authority of 
the home Member State must be recognised in the host Member State even where 
the requirement to publish has not been fulfilled. 
45 In the second place, the referring court looks at the legitimate expectation of 
customers in relation to the conduct of NB Spain, and states the following. 
46 In this case, that legitimate expectation was generated by the bank’s conduct, in 
the specific form of its response to the customer’s out-of-court claim in respect of 
the ‘floor’ clause. 
47 NB Spain turned down the request of the customer (borrower) for reimbursement 
of the sums in question. As the applicable Spanish legislation required it to give 
the reasons for its decision, NB Spain stated that it had studied the documentation 
relating to the loan in question and the ‘floor’ clause was not unfair because ‘the 
bank [had] acted with full transparency’. 
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48 In other words, NB Spain defended its conduct at the time when the contract was 
concluded even though the contract had actually been concluded by BES Spain. 
NB Spain did not at any point mention its failure to fulfil the obligation to 
reimburse those sums because they constituted a liability which had not been 
transferred to it under the decisions adopted by the Banco de Portugal. 
49 The consumer therefore believed that the difference of opinion between the bank 
and himself was confined to any absence of transparency at the time when the 
contract was concluded. 
50 Furthermore, [it was apparent from] other similar legal proceedings that, from 
August 2014, NB Spain had proactively sent its customers letters in which it 
stated that BES was now part of NB and this did not entail any contractual 
changes. It had also sent them bank statements showing the products taken out 
with BES Spain but without any further clarification. 
51 Otherwise, NB Spain’s employees and physical premises were the same as BES 
Spain’s had been. 
52 As a result of the conduct described above and the abovementioned other 
considerations, the appearance of continuity created in customers a legitimate 
expectation that the legal relationship they had had with BES (including 
liabilities) had been transferred, unchanged, to NB, by full subrogation and 
without any loss of rights for them. 
53 Consequently, the consumer in this case brought a legal action against NB Spain 
in the expectation that that institution now occupied the same contractual position 
as had originally been held by BES Spain. That consumer was then legitimately 
surprised by the defendant’s response that it lacks standing to be sued because the 
obligations under the abovementioned legal relationship (in this case, the 
obligation to reimburse the sums improperly collected by virtue of the ‘floor’ 
clause) had not been transferred to it, and that that claim must be pursued against 
BES. 
54 A further fact can be cited: when NB sent communications to the consumer in this 
case, it was acting under the control of the Resolution Fund. It was not until 
March 2017 that the Resolution Fund sold 75% of the share capital in NB. The 
conduct that created a legitimate expectation is therefore attributable to an 
institution that was acting pursuant to EU law. 
55 Notwithstanding all of the foregoing, the Banco de Portugal has argued during the 
proceedings that the conduct of NB Spain does not alter the obligation of the 
Spanish courts to recognise the effectiveness of all of the decisions adopted by the 
Banco de Portugal itself. 
56 For those reasons, it is doubtful whether Article 3(2) of Directive 2001/24 can be 
interpreted as meaning that decisions adopted by the authority in the home 
Member State, whereby the ordinary business and assets of the reorganised bank 
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are partially transferred (but certain liabilities are not), must be recognised in the 
host Member State, where the subsequent conduct of the ‘bridge bank’, acting 
under the control of another public authority in the home Member State, has itself 
created among customers in the host Member State a legitimate expectation that a 
full transfer took place. 
57 Those doubts are due once again to the potential incompatibility of that 
interpretation with the fundamental right to effective judicial protection and the 
general principle of legal certainty. 
58 In the third place, the referring court looks at the fragmentation of the 
contractual relationship to the detriment of the consumer, and states the 
following. 
59 A further argument used by the Spanish courts to reject the proposition as to NB 
Spain’s lack of standing to be sued is that it is not permissible to fragment a pre-
existing contractual relationship under which customers continued to fulfil their 
obligations following subrogation. 
60 According to the Banco de Portugal, NB takes with it the creditor positions under 
the relationship, which it begins to exercise in relation to customers, while BES 
retains the debtor positions (obligations linked to that relationship such as those 
arising from the application of unfair terms, the annulment of financial contracts 
on grounds of an error of consent brought about by the failure to provide 
information on the risk or the non-payment of debt instruments issued by the BES 
group). Consequently, NB Spain refuses to reimburse sums which it owes to 
customers where the contracts are totally or partially ineffective. 
61 The fact of the matter is that BES is a failing institution and that customers were 
not even informed of the proceedings for its winding-up (so as to enable them to 
file their claims in those proceedings). In practice, therefore, customers have no 
expectation whatsoever of being able to recover their debts. 
62 It should be recalled that Article 6(1) of Directive 93/13 establishes the principle 
that consumers are not bound by unfair terms (such as, for example, the ‘floor’ 
clause in this case). According to the Court of Justice, that principle is of equal 
standing to national rules of public policy. 
63 Now, if the Banco de Portugal’s decisions on reorganisation are recognised as 
being fully effective, the consumer will be bound by just such a term, because he 
will not be able to recover the amount owed to him. 
64 In that connection, the Banco de Portugal submits that Directive 93/13 does not 
protect consumers in the event of the insolvency of a business. 
65 It is doubtful, however, whether Article 6(1) of Directive 93/13 does not apply to 
all cases of non-negotiated consumer contracts. 
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66 The Banco de Portugal further submits that consumers’ rights do not take 
precedence over the stability of the financial system. 
67 However, the judgment of the Court of Justice in Case C-154/15 may be cited in 
support of the contrary proposition. 
68 It is also debatable whether the assets owned by customers in circumstances such 
as these come within the scope of the fundamental right to property. That 
possibility cannot be ruled out, however, in the light of the broad interpretation 
which the ECtHR has adopted of the right to property and in the light of 
Article 52(3) of the Charter. 
69 In the event that such assets do come within the scope of the right to property, 
recognition of the effectiveness of the decisions of the Banco de Portugal might 
constitute a disproportionate interference with the right to property enjoyed by the 
customer in this case. 
70 Lastly, it could in theory be argued that, in the Opinion in Case C-504/19, it was 
stated that bridge institutions (such as NB Spain in the present case) are intended 
to maintain only the healthy lines of business of an ailing bank. This is said to 
justify the partial transfer of business between BES and NB. 
71 In the present case, however, the line of business at issue is indeed healthy but 
there is an attempt to transfer part of that line of business by relieving NB of the 
obligations which it owes to customers. 
72 Reliance may be placed in this regard on the case-law of the Court of Justice to 
the effect that losses sustained in resolution proceedings are to be borne first by 
shareholders and then by creditors (judgment in Case C-410/[20]). In the present 
case, however, there is an attempt to impose the losses not on a creditor but on one 
of the bank’s debtors (the borrower).