62023CJ0346_RES
Case C‑346/23
Banco Santander SA
v
Asociación de Consumidores y Usuarios de Servicios Generales – Auge
(Request for a preliminary ruling from the Tribunal Supremo)
Judgment of the Court (Fourth Chamber) of 16 January 2025
(Reference for a preliminary ruling – Markets in financial instruments – Directive 2004/39/EC – Article 52(2) – Action brought in the interests of consumers – Consumer organisations having a legitimate interest in protecting consumers – Standing to bring legal proceedings to defend the individual interests of their members – Loss of standing in the case of investments in high-value financial products – Exemption from court fees and from the obligation to pay the costs incurred by the opposing party – Procedural autonomy – Principle of effectiveness)
Freedom of establishment – Freedom to provide services – Markets in financial instruments – Directive 2004/39 – Action brought in the interests of consumers – Interest of consumers – Concept – Individual interests of a number of consumers – Included
(European Parliament and Council Directive 2004/39, Art. 52(2))
(see paragraphs 46-48)
Freedom of establishment – Freedom to provide services – Markets in financial instruments – Directive 2004/39 – Action brought in the interests of consumers – Consumer organisation defending the individual interests of a number of its members – Locus standi – Limitation according to the financial means of the defendant investors and the financial instruments in which they have invested – Not permissible – Refusal to grant legal aid to that organisation on account of the financial means of the defendant investors and the financial instruments in which they have invested – Whether permissible – Conditions
(European Parliament and Council Directive 2004/39, Art. 52(2))
(see paragraphs 49, 50, 55-57, 61, 63, operative part)
Résumé
In the context of a dispute relating to the validity of contracts for the acquisition of financial instruments concluded by investor-consumers defended by a consumer association, the Court of Justice confirms that the standing to bring proceedings of such an association defending the individual interests of a number of its members cannot be subject to restrictions relating to the financial means of those members and to the characteristics of the financial products in which those members have invested. Such criteria may nevertheless be taken into consideration in order to decide whether that association can benefit from legal aid.
Two individuals had invested in financial products with Banco Banif, now Banco Santander. An action was brought against that bank before the Spanish courts by the Asociación de Consumidores y Usuarios de Servicios Generales – Auge (Association of Consumers and Users of General Services; ‘Auge’), which represented those two individuals; in that action, they sought a declaration that the contracts for the acquisition of those financial products were null and void, on the grounds that those contracts were not properly accepted.
Since the courts of first instance and appeal upheld that action, the bank referred to above applied for an exceptional review procedure on the basis of procedural defects and brought an appeal on a point of law against that judgment before the Tribunal Supremo (Supreme Court, Spain), which is the referring court. The bank claims before that court that Auge does not have standing to bring legal proceedings on behalf of its members, on the ground that the products subscribed for by those members are high-value speculative financial products, and not products of common and widespread use, with the result that the action brought does not fall within the scope of consumer protection under national law.
According to national case-law, consumer organisations do not have standing to bring proceedings where the action concerns investments in speculative financial products or high-value financial products, since those products were not in common, ordinary and widespread use. According to the referring court, not granting those associations standing in those circumstances makes it possible to avoid fraudulent or wrongful use of the specific standing of consumer associations to bring proceedings by investors with significant financial means, with a view to exercising the right to legal aid which national law grants to those associations.
It is in that context that the referring court asks whether the national case-law limiting the standing to bring proceedings of a consumer association on behalf of one of those investor-consumers on account of that investor-consumer’s financial means and the monetary value, type and complexity of his or her investments is consistent with Article 52(2) of Directive 2004/39. (
1
)
Findings of the Court
First of all, the Court recalls that a ‘retail client’, within the meaning of Article 4(1)(12) of that directive, may be classified as a ‘consumer’ if he or she is a natural person acting outside any commercial activity. (
2
) It is also clear from recital 14 of Directive 2020/1828 (
3
) that a ‘retail client’ constitutes a consumer and from recital 13 of that directive that it covers, in addition to general consumer law, fields such as that of financial services.
Next, the Court states that Member States are entitled to grant consumer protection bodies standing to bring proceedings in order to protect the individual interests of a number of their members.
In reaching that conclusion, the Court notes that Article 52(2) of Directive 2004/39 refers to the interest of ‘consumers’ in the plural. Although the use of the plural indicates that an action brought by a consumer organisation must relate to the interests of a number of consumers, that provision does not specify whether that collective dimension of the action refers to the general interest of consumers or, on the contrary, to the individual interests of a number of consumers. Nevertheless, in so far as that provision refers to the law of the Member States both as regards the determination of the bodies which may represent the interests of consumers and as regards the detailed procedural rules according to which that representation must actually be exercised, the Member States remain free to determine the individual or collective nature of the interests which may be defended by consumer protection organisations.
In addition, where a Member State has conferred on consumer organisations standing to bring legal proceedings in order to defend the individual interests of a number of their members, it is not, however, permissible to limit the standing of such an organisation to defend a certain category of consumers identified on the basis of their financial means and the financial instruments in which they have invested. Article 52(2) of Directive 2004/39 provides for a right of appeal in the interests of all consumer-investors, without distinguishing them in that regard.
However, neither that provision nor any other set of rules under EU law requires legal aid to be granted to consumer organisations bringing actions in the interest of consumers. Each Member State must establish its own rules regarding its legal aid scheme, in accordance with the principle of procedural autonomy, provided that those rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). In that regard, the court fees that an association is required to pay if it does not receive legal aid must not constitute insurmountable costs that are capable of making it impossible in practice or excessively difficult to exercise the right to take action provided for in Article 52(2) of Directive 2004/39.
(
1
)	Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).
(
2
)	See, to that effect, judgment of 3 October 2019, Petruchová, (C‑208/18, EU:C:2019:825, paragraph 76).
(
3
)	Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ 2020 L 409, p. 1). Annex I to that directive refers to Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ 2014 L 173, p. 349), which repealed and replaced Directive 2004/39 and Article 74(2) of which, which concerns the right to bring proceedings in the interests of consumers, corresponds to Article 52(2) of Directive 2004/39, with the wording of those two articles being almost identical.