Opinion of the Advocate General — ECLI:EU:C:2024:690
Date: 2024-09-05
Language of the case: Spanish
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-346/23 – 1 
Case C-346/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
1 June 2023 
Referring court: 
Tribunal Supremo (Spain) 
Date of the decision to refer: 
17 May 2023 
Defendant/appellant: 
Banco Santander SA, successor to Banco Banif SA 
Applicant/respondent: 
Asociación de Consumidores y Usuarios de Servicios Generales-
Auge, on behalf of its members: Andrea and Alberto 
  
Subject matter of the main proceedings 
(Freedom of establishment – Freedom to provide services – Markets in financial 
instruments – Directive 2004/39/EC – Right of appeal – Standing to bring 
proceedings of consumer associations – Transactions that cannot be regarded as of 
common, ordinary and widespread use or consumption) 
Exceptional appeal for breach of procedure and appeal on a point of law lodged 
with the Tribunal Supremo (Supreme Court, Spain) against a judgment of the 
Audiencia Provincial de Granada (Provincial Court, Granada, Spain) by which 
that court dismissed the appeal brought by Banco Banif, SA (now Banco 
Santander SA) against the judgment at first instance granting in part the claims of 
the Asociación de Consumidores y Usuarios de Servicios Generales-Auge 
(Association of Consumers and Users of General Services – Auge; ‘Auge’), on 
behalf of its members Alberto and Andrea, in proceedings for a declaration that 
several contracts for the purchase of financial products are null and void on the 
ground of vitiated consent. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-346/23 
 
2 
Subject matter and legal basis of the reference 
(Request for a preliminary ruling on interpretation – Article 267 TFEU) 
Question referred for a preliminary ruling 
‘On the basis that consumer associations have standing to represent in legal 
proceedings investors/consumers claiming a breach of duty by an investment firm 
in the marketing of complex financial products, can that standing be restricted 
exceptionally by national courts, in the context of an individual claim, in cases 
involving high-worth investors who carry out transactions that cannot be regarded 
as being of ordinary and widespread use and who bring proceedings under the 
aegis of a consumer association with the result that they are able to benefit from a 
possible exemption from legal costs in very high-value court proceedings, 
avoiding the payment of court fees and avoiding paying the costs of the opposing 
party in the case of unfounded or even frivolous claims?’ 
Provisions of EU law cited 
Directive 2004/39/EC of the European Parliament and of the Council of 21 April 
2004 on markets in financial instruments (MiFID I): Article 52(2) (Right of 
appeal). 
Judgment of the Court of Justice of 2 April 2020, Reliantco Investments and 
Reliantco Investments Limassol Sucursala Bucureşti, C-500/18, EU:C:2020:264. 
Judgment of the Court of Justice of 20 September 2018, EOS KSI Slovensko, 
C-448/17, EU:C:2018:745, paragraphs 35 and 36. 
Provisions of national law cited 
Article 8(1)(e) of Real Decreto Legislativo 1/2007, de 16 de noviembre, por el que 
se aprueba el texto refundido de la Ley General para la Defensa de los 
Consumidores y Usuarios y otras leyes complementarias (Royal Legislative 
Decree 1/2007 of 16 November approving the recast test of the General Law for 
the Protection of Consumers and Users and other complementary laws), provides 
that consumers’ and users’ basic rights include, in particular, representation of 
their interests through legally constituted consumer and user associations, groups, 
federations or confederations. 
Article 11(1) of the Ley de Enjuiciamiento Civil (Law on Civil Procedure) (LEC) 
provides that, without prejudice to the individual right of injured parties to bring 
proceedings, legally established consumer and user associations shall have locus 
standi to defend in a court of law the rights and interests of their members and of 
the association, as well as the general interests of consumers and users. 
BANCO SANTANDER 
 
3 
Under Disposición Adicional 2a de la Ley 1/1996, de 10 de enero, de asistencia 
jurídica gratuita (Second Additional Provision of Law 1/1996 of 10 January on 
legal aid), consumer associations are entitled to legal aid where the actions 
brought ‘relate directly to products or services of common, ordinary and 
widespread use or consumption’. 
Pursuant to Article 36(2) of Law 1/1996, this means that, if the association is 
unsuccessful, it does not have to pay the costs of the opposing party, however high 
the value of the proceedings, nor would those costs be paid by the individual 
members whom that association represents in the proceedings. 
Real Decreto 1507/2000 (Royal Decree 1507/2000) of 1 September, which 
establishes the catalogue of products and services of common, ordinary and 
widespread use, lists, in general terms, banking and financial services among 
those products and services (Annex I(c)(13)). 
Both Article 11(2) of the Ley Orgánica del Poder Judicial (Basic Law on the 
Judiciary) and Article 247(2) of the Law on Civil Procedure provide, in the same 
terms, that the courts are to reject by way of a reasoned decision claims, 
proceedings or complaints brought as a clear abuse of rights or in circumvention 
of the law or procedure. 
Brief summary of the facts and procedure 
1 Between May 2007 and March 2009, Alberto and Andrea made five purchase 
orders for financial products (five bonds issued, in particular, by KBC, Lehman 
Brothers, BNP Paribas and Abbey) with Banco Banif SA (now Banco Santander 
SA) for amounts ranging from EUR 150 000 to EUR 300 000 and for a total 
amount of EUR 900 000. 
2 All the purchases were made under Directive 2004/39/EC of the European 
Parliament and of the Council of 21 April 2004 on markets in financial 
instruments (MiFID I). 
3 Auge, on behalf of its members Alberto and Andrea, brought an action against the 
bank, seeking a declaration that the abovementioned contracts for the purchase of 
financial products were null and void on the ground of vitiated consent, and an 
order that the investors be reimbursed the sum of EUR 481 634.14, plus fees, 
expenses and interest. That action was upheld in respect of the 2007 and 2008 
purchase orders, and dismissed in respect of the 2010 order. Consequently, the 
investment firm was ordered to repay the applicants the sum of EUR 462 515.74, 
plus statutory interest from the date of the respective cancelled investments. 
4 The defendant’s appeal was dismissed by the Provincial Court, Granada, which 
upheld the first-instance judgment, on the grounds that the defendant did not take 
the investment profile of the clients into account and did not provide them with 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-346/23 
 
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clear and complete pre-contractual information on the risks of the products they 
were contracting. 
5 The defendant bank has lodged an exceptional appeal for breach of procedure and 
an appeal on a point of law against the judgment of the Provincial Court, Granada, 
which have been found admissible. 
Principal arguments of the parties in the main proceedings 
6 The appellant argues that Auge does not have standing to bring proceedings on 
behalf of its members, since the contracted products are not of common and 
widespread use, but on the contrary are speculative financial products of high 
economic value, which go beyond common consumer products. 
7 It adds that the request for a preliminary ruling was not necessary because the 
legal standing of consumer associations is a matter for national law, to which EU 
law refers. 
8 Auge, the respondent, submitted that, in its view, it was appropriate to make a 
reference for a preliminary ruling concerning the loss of a financial consumer’s 
status as such due to the high amount and complexity of his or her investments 
and, therefore, of the right to bring legal proceedings through a consumer 
association against a banking institution. 
Brief summary of the basis for the reference 
9 The Supreme Court emphasises that it is relevant to the outcome of the appeals to 
rule on the disputed issue of Auge’s standing to bring legal proceedings on behalf 
of the investors who are the subject of the action, who are its members, by 
bringing actions relating to compliance with the advisory obligations of 
investment firms under the MiFID I rules. 
10 As a general rule, the Supreme Court has accepted that consumer associations 
have standing to bring proceedings to defend their members in actions covered by 
the MiFID I rules, including in proceedings to which Auge was a party. 
11 However, in two specific judgments, the Supreme Court found that Auge, as a 
consumer association, did not have standing to defend the individual interests of 
consumers in relation to investments in speculative financial products of high 
economic value, since it considered that they were not products or services 
intended for consumers as such, because they are not of common, ordinary or 
widespread use, and in so far as, under Spanish law, that legal standing of 
consumer and user associations is linked to the protection of their rights where 
they are directly related to goods or services of common, ordinary and widespread 
use or consumption. 
BANCO SANTANDER 
 
5 
12 In those judgments, the Supreme Court reasoned that there are financial services 
that, due to their nature and circumstances – in view of their high amounts and 
speculative nature – go beyond the classification of ‘services of common, ordinary 
and widespread use’. That does not mean that the individual investors concerned 
cannot themselves bring proceedings to defend their rights, but that they are not 
justified in doing so through a consumer association in order not to pay the court 
fees required to bring proceedings and to avoid the risks of being ordered to pay 
the costs in the proceedings and on appeal. 
13 The aim is thereby to avoid fraudulent or abusive use of that special standing of 
consumer associations, in disputes in which the status of consumer is weakened in 
view of the characteristics of the dispute and the amount in dispute, in order to 
take advantage of the right to legal aid that the law grants those associations when 
they assert the interests of their members in court. 
14 The Supreme Court states that the Court of Justice has not expressly ruled on the 
discretionary powers of national courts as regards the standing of consumer and 
user associations to bring proceedings in respect of the exercise of rights based on 
the MiFID I rules. 
15 Last, the Supreme Court has never denied the status of consumers to profit-
seeking investors acting in a field that is beyond their commercial or professional 
activity, even if their investments have been complex or significant; it has only 
questioned the legal standing of such an association in certain specific cases in 
which it has held that, in view of its circumstances, there could be a circumvention 
of procedure consisting in avoiding paying court fees and the consequences of an 
order for the payment of costs, by not bringing proceedings personally but through 
a consumer association, all to the detriment of the opposing party and the 
Treasury. 
16 It is therefore necessary to ask the Court of Justice whether, in certain 
circumstances, even if the size of an investment or its complexity does not deprive 
the investor of his or her status as a consumer, the capacity of a consumer 
association to represent him or her may be restricted where it is found that there 
may be a circumvention of procedure consisting in avoiding the payment of court 
fees and the consequences of an order for costs, by not bringing proceedings 
himself or herself but through a consumer association.