Judgment;Summary — ECLI:EU:C:2024:81
Date: 2024-01-25
Language of the case: Spanish
Court formation: Ninth Chamber
Subject matter: European Free Trade Association (EFTA);External relations;Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-810/21 – 1 
Case C-810/21 
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: 
20 December 2021 
Referring court:  
Audiencia Provincial de Barcelona (Spain) 
Date of the decision to refer:  
9 December 2021 
Appellant:  
Bankia, S. A. 
Respondents:  
WE 
XA 
  
Subject matter of the main proceedings 
Consumer protection – Mortgage loan contract ― Term relating to the costs of the 
contract – Unfair term – Action for restitution as a consequence of the nullity of 
the unfair term – Limitation period for the action – Point from which that 
limitation period starts to run 
Subject matter and legal basis of the request for a preliminary ruling 
Request for a preliminary ruling on interpretation – Article 267 TFEU – 
Compatibility of a national provision with Directive 93/13/EEC – Principles of 
equivalence and effectiveness 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-810/21 
 
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Questions referred for a preliminary ruling 
1) In relation to the pursuit of an action to enforce the restitutory effects of a 
declaration of nullity of a term under which the borrower is required to pay the 
costs of formalising the contract, is it compatible with Article 6(1) and 
Article 7(1) of Directive 93/13 to make the bringing of the action subject to a 10-
year limitation period which starts to run from when the term exhausts its effects 
upon settlement of the final payment, the point at which the consumer becomes 
aware of the facts which establish the unfairness, or is it necessary for the 
consumer to be in possession of additional information concerning the legal 
assessment of the facts? 
If knowledge of the legal assessment of the facts is necessary, must the start of the 
limitation period be made subject to the existence of settled case-law concerning 
the nullity of the term or may the national court take other, different circumstances 
into consideration? 
2) Given that the action for restitution is subject to a long limitation period of 
10 years, at what point must the consumer be in a position to be aware of the 
unfairness of the term and of the rights granted to him or her under Directive 
93/13 – before the limitation period starts to run or before that period expires? 
Case-law and provisions of European Union law relied on 
Judgment of the CJEU of 16 July 2020, Caixa Bank and Banco Bilbao Vizcaya 
Argentaria, C-224/19 and C-259/19, EU:C:2020:578. 
Judgment of the CJEU of 9 July 2020, SC Raiffeisen Bank and BRD Groupe 
Société Générale, C-698/18 and C-699/18, EU:C:2020:537. 
Judgment of the CJEU of 10 June 2021, BNP Paribas Personal Finance, 
C-776/19 to C-782/19, EU:C:2021:470. 
Judgment of the CJEU of 22 April 2021, Profi Credit Slovakia, C-485/19, 
EU:C:2021:313. 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts. 
Article 6(1) and Article 7(1). 
Case-law and provisions of national law relied on 
Judgment No 792/2009 of the Tribunal Supremo (Supreme Court, Spain) of 
16 December 2009, ES:TS:2009:8466. 
BANKIA 
 
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Judgment No 241/2013 of the Tribunal Supremo (Supreme Court) of 9 May 2013, 
ES:TS:2013:1916. 
Judgment No 705/2015 of the Tribunal Supremo (Supreme Court) of 
23 December 2015, ES:TS:2015:5618. 
Catalan Civil Code: 
Article 121-23: ‘The limitation period begins to run once the claim has arisen and 
become enforceable, and once the holder of the claim is, or could reasonably be, 
aware of the circumstances giving rise to the claim and the person against whom 
it may be brought.’ 
Article 121-11 provides that the grounds for interrupting the limitation period 
include, inter alia, the bringing of legal proceedings or the pursuit of the claim out 
of court. 
Spanish Civil Code (Código Civil). Article 1303: ‘Where an obligation has been 
declared void, the contracting parties must restore to one other those things that 
formed the subject matter of the contract, together with the profits derived 
therefrom, and the price together with interest, subject to the provisions of the 
following articles.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicants lodged an application at first instance for a declaration of nullity of 
a term which attributed to the borrower all the costs arising from formalisation of 
the mortgage loan contract entered into with the defendant, BANKIA, S.A., and 
seeking the return of the amounts paid in that connection. 
2 The defendant bank, BANKIA, S.A., contested the application, arguing that the 
action was time-barred because the period of 10 years stipulated for that purpose 
by the Catalan Civil Code had elapsed. The contract was signed on 4 February 
2004 and the final invoice for the costs payable by the consumer, relating to 
management expenses, was paid by the consumer on 4 May 2004. The term 
ceased to produce effects from that date. The application was thus lodged almost 
14 years later, on 16 January 2018. 
3 By judgment of 23 September 2020, the Juzgado de Primera Instancia No 50 de 
Barcelona (Court of First Instance No 50, Barcelona, Spain) dismissed the plea 
that the action was time-barred and ordered the credit institution to reimburse to 
the applicants the amount paid in respect of notarial, registration and management 
expenses (EUR 468.48). 
4 The defendant, BANKIA. S.A., lodged an appeal against that judgment, registered 
under the number 560/2021, in which it insisted that the action is time-barred. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-810/21 
 
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5 Another three appeals (No 565/2021, No 874/2021 and No 651/2021) are pending 
before the referring court, which stem from actions having identical subject matter 
in which the applicants sought a declaration of nullity of a term attributing to the 
borrowers the costs of formalisation of the mortgage loan agreements concluded 
with the defendant credit institutions and the reimbursement of the expenses paid 
in that connection. In all those actions, the defendant credit institutions argued that 
the proceedings are time-barred on the grounds that the period of 10 years laid 
down in the Catalan Civil Code has elapsed. 
6 Appeal No 565/2021 (request for a preliminary ruling in Case C-811/21) concerns 
a mortgage loan contract concluded with BANCO BILBAO VIZCAYA 
ARGENTARIA, S. A., the appellant, on 20 January 2004. The consumer paid the 
final invoice for management expenses on 15 March 2004. The term ceased to 
produce effects from that date. The application was lodged almost 14 years later, 
on 16 January 2018. The judgment at first instance dismissed the plea that the 
action was time-barred and ordered the credit institution to reimburse the (notarial, 
registration and management) expenses of the contract paid by the consumer 
(EUR 499.61). 
7 Appeal No 874/2021 (request for a preliminary ruling in Case C-813/21) concerns 
a mortgage loan contract concluded with Banco Sabadell on 14 July 2006. The 
consumer paid the final invoice for management expenses on 4 October 2006. The 
term ceased to produce effects from that date. The applicants submitted an out-of-
court claim to the bank on 15 November 2017, and the legal action was brought 
11 years after [payment of the final invoice], on 15 December 2017. The judgment 
at first instance upheld the plea that the action was time-barred and merely 
declared that the term was null and void. The applicants and appellants dispute 
that the action for restitution is time-barred. 
8 Appeal No 651/2021 (request for a preliminary ruling in Case C-812/21) concerns 
a mortgage loan contract concluded with BANCO SANTANDER, S. A., the 
appellant, on 17 December 2004. The consumer paid the final invoice for 
management expenses on 18 March 2005. The term ceased to produce effects 
from that date. The application was lodged almost 13 years later, on 12 September 
2017. The judgment at first instance dismissed the plea that the action was time-
barred and ordered the credit institution to reimburse the (notarial, registration and 
management) expenses of the contract paid by the consumer (EUR 589.60). 
The essential arguments of the parties in the main proceedings 
9 The applicants submit that the contract term in question is null and void on the 
grounds that it is unfair, and they were heard on the matter of making a reference 
for a preliminary ruling. 
10 The defendant and appellant submits that the action is time-barred on the ground 
that the 10-year period set in the Catalan Civil Code has elapsed, and it was heard 
on the matter of making a reference for a preliminary ruling. 
BANKIA 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
11 The Catalan Civil Code lays down a general limitation period of 10 years for 
bringing proceedings. That period starts to run when the holder of the right is, or 
could reasonably be, aware of the circumstances giving rise to the claim, and it is 
interrupted, inter alia, by the bringing of legal proceedings or the pursuit of the 
claim out of court, in accordance with the Catalan Civil Code. 
12 The Court of Justice of the European Union (CJEU) has already ruled on the 
question whether Directive 93/13 is compatible with the assessment of a limitation 
period in an action for restitution or for elimination of the effects of an expenses 
clause that has been declared null and void. In that connection, in its judgment of 
16 July 2020, Case C-224/19, given as a result of the questions referred for a 
preliminary ruling by two Spanish courts, the CJEU held that ‘Articles 6(1) and 
7(1) of Directive 93/13 must be interpreted as meaning that it is not contrary to 
those provisions for the bringing of an action to assert the restitutory effects of a 
finding that an unfair contractual term is void to be subject to a limitation period, 
provided that the starting point and duration of that period do not make it 
practically impossible or excessively difficult for the consumer to exercise his or 
her right to seek such a refund’ (paragraph 92). 
13 However, the approaches taken by different courts in the light of the above 
judgment of the CJEU have varied. For some, an action for restitution has no 
limitation period or the limitation period can only start to run from the date of the 
judicial declaration of nullity of the term, whereas, for others, the starting point of 
the limitation period is the date on which the contract is signed or the expenses are 
paid. Intermediate positions have also been taken, such as that the limitation 
period starts to run from the date of the important judgment of the Tribunal 
Supremo (Supreme Court) of 9 May 2013 on floor clauses or from the date of the 
judgment of the Tribunal Supremo (Supreme Court) of 23 December 2015 on the 
nullity of expenses clauses. The referring court has taken the view from the outset 
that the period starts to run from the date of payment of the final invoice. 
14 In its judgment of 9 July 2020, C-698/18 and C-699/18, the CJEU held that 
‘Article 2(b), Article 6(1) and Article 7(1) of Directive 93/13 must be interpreted 
as not precluding a national rule which, while providing that an action seeking a 
finding of nullity of an unfair term in a contract concluded between a seller or 
supplier and a consumer is not subject to a time limit, subjects the action seeking 
to enforce the restitutory effects of that finding to a limitation period, provided 
that that period is not less favourable than those governing similar domestic 
actions (principle of equivalence) and that it does not render practically 
impossible or excessively difficult the exercise of rights conferred by the EU legal 
order, in particular Directive 93/13 (principle of effectiveness).’ 
15 At paragraph 60 of the same judgment, the CJEU held that ‘as regards, in the first 
place, the principle of effectiveness, it is settled case-law that the question whether 
a national provision makes the application of EU law impossible or excessively 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-810/21 
 
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difficult must be analysed by reference to the role of that provision in the 
procedure, its progress and its special features, viewed as a whole, before the 
various national bodies. In that context, it is necessary to take into consideration, 
where relevant, the principles which lie at the basis of the national legal system, 
such as the protection of the rights of the defence, the principle of legal certainty 
and the proper conduct of the proceedings’. 
16 At paragraph 61 of that judgment, the CJEU held that the analysis of the limitation 
period ‘must cover, inter alia, the duration of that time limit and the mechanism 
adopted to start that period running’. 
17 Accordingly, the two fundamental criteria for determining whether a limitation 
period is compatible with the principle of effectiveness of EU law relate, first, to 
the length of the limitation period, and, second, to the rules for establishing the 
starting point of that period. 
18 As regards the length of the limitation period, the CJEU has stated that it must be 
‘sufficient … to enable a consumer to prepare and bring an effective action’ 
(judgments of 9 July 2020, C-698/18, and of 10 June 2021, C-776/19). In its 
judgment of 16 July 2020 (C-224/19), the CJEU held that ‘in so far as limitation 
periods of three years … or two years … have been found, in the case-law of the 
Court, to be consistent with the principle of effectiveness, it must be held that a 
five-year limitation period applicable to an action to assert the restitutory effects 
of a finding that an unfair term is void does not, in principle, and subject to an 
assessment by the national court of the factors referred to in paragraph 85 of this 
judgment, appear to be such as to render the exercise of the rights conferred by 
Directive 93/13 practically impossible or excessively difficult.’ 
19 Therefore, the referring court takes the view that the 10-year limitation period laid 
down by the Catalan Civil Code respects the principle of effectiveness. 
20 However, the determination of the starting point of that period (dies a quo) is 
uncertain. In that connection, the CJEU held in its judgment in Case C-224/19, at 
paragraph 90, that ‘it is important to bear in mind that consumers may be unaware 
that a term in a mortgage loan agreement is unfair or do not appreciate the extent 
of their rights under Directive 93/13’. This means that the determination of when 
that period starts to run, in accordance with national legislation, must enable the 
average consumer to become aware of the existence of the unfair term and then go 
on to bring an action for a declaration of nullity. 
21 A clause which attributes to the borrower all the formalisation costs of the 
contract completely exhausts its effects upon payment by the consumer of the 
final invoice. At that point, the consumer becomes aware that he or she has borne 
all the formalisation costs of the contract and what the total amount of those costs 
is, without it being necessary for the contract to be performed and come to an end 
in order for the consumer to be able to bring proceedings to recover the amount 
which, in the consumer’s opinion, he or she has wrongly paid. Therefore, the date 
BANKIA 
 
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of conclusion of the contract is not sufficient because, on that date, the borrower 
only advances funds to cover the costs, which have not yet been settled. 
22 In its judgment of 22 April 2021 (C-485/19), the CJEU held that ‘credit 
agreements such as that at issue in the main proceedings are generally executed 
over long periods of time and, therefore, if the event which triggers the three-year 
limitation period is any payment made by the borrower, which it is for the national 
court to ascertain, it cannot be ruled out that, at least in respect of some of the 
payments made, the limitation period will run even before the contract in question 
comes to an end, so that such a limitation period regime is liable systematically to 
deprive consumers of the possibility of claiming the return of payments made 
under terms contrary to those directives’ (paragraph 63). 
23 The referring court believes that the uncertainty, which has not been dispelled by 
the CJEU, remains as to whether the consumer’s awareness that the term is unfair 
relates solely to the facts on which the unfairness is based or whether it also 
extends to the legal assessment of those facts, bearing in mind that the model of 
the average consumer to be taken into account is a person who is reasonably well 
informed and reasonably observant and circumspect but not necessarily an expert 
in the law. If awareness relates to the facts, payment of the final invoice, which is 
when the term completely exhausts its effects, could be sufficient . 
24 On the other hand, if respect for the principle of effectiveness requires that the 
consumer must be in a position to conduct a legal assessment of those facts, it will 
be necessary to specify exactly what information should be available to the 
average consumer, in particular, whether the start of the limitation period must be 
delayed until settled case-law exists on the unfairness of the term or the national 
court is able to take other, different circumstances into account. In the former 
case, the consumer would have absolute certainty that the action would succeed. 
However, in so far as the principle of effectiveness is related to the fact that it 
must be ‘possible’ or not ‘excessively difficult’ to bring proceedings, it may be 
sufficient for the consumer to know that the claim for a refund is likely to succeed. 
The same question has also arisen in other legal systems, and it has been agreed 
that the start of the limitation period may be delayed if case-law exists that is 
openly hostile to the claim brought. That is not the case of the Spanish legal 
system, in which there has been no case-law contrary to a claim for 
reimbursement derived from the nullity of an expenses clause. Indeed, there has 
been general acceptance over time that the nullity of an unfair term must lead to 
the elimination of the effects arising as a result of the application of that term. 
25 The important judgments of the Spanish Tribunal Supremo (Supreme Court) of 
16 December 2009, 9 May 2013 and 23 December 2015, in which various unfair 
terms in consumer contracts were declared invalid constitute examples of factors 
which enable the acquisition of full awareness, from a legal or legislative 
perspective, of the unfairness of a term, where the legal framework has not 
changed, and of the likelihood that a claim for reimbursement will succeed. 
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26 It is also necessary to clarify whether knowledge of the unfairness of a term and of 
the extent of the rights which Directive 93/13 grants to consumers must have been 
acquired before the limitation period starts to run, in accordance with the national 
legislation, or before that period expires. In its judgment of 10 June 2021 
(C-776/19), the CJEU held that ‘a limitation period may be compatible with the 
principle of effectiveness only if the consumer has had the opportunity to become 
aware of his or her rights before that period begins to run or expires’ 
(paragraph 46). The issue is important in view of the length of the limitation 
period laid down by the Catalan Civil Code (10 years), which is longer than that 
laid down by the national provision (five years under Article 1964 of the Spanish 
Civil Code), in addition to the possibility that the limitation period may be 
interrupted merely by an out-of-court claim, in accordance with Article 121-14 of 
the Catalan Civil Code.  
27 Accordingly, the referring court considers it necessary, like the Spanish Tribunal 
Supremo (Supreme Court) in the questions it referred for a preliminary ruling by 
order of 22 July 2021, to refer a new question to resolve the uncertainties relating 
to the practical application of the case-law laid down by the CJEU in its judgment 
of 16 July 2020. In the light of the connection between the present preliminary-
ruling proceedings and the request for a preliminary ruling in Case C-565/21, the 
joinder of the two cases is requested.