1 These requests for a preliminary ruling concern the interpretation of Article 3(2) and Article 6 of 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 (OJ 2001 L 125, p. 15), of Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), of Articles 17, 21, 38 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of the principles of legal certainty and the protection of legitimate expectations.
2 The requests have been made in proceedings between Novo Banco SA - Sucursal en España (‘Novo Banco’), supported by the Banco de Portugal (Bank of Portugal) and the Fundo de Resolução (Resolution Fund, Portugal), and a number of customers of Novo Banco concerning the effects, on various contracts for financial products and services, of the reorganisation measures taken in relation to Banco Espíritu Santo SA (‘BES’), a Portuguese credit institution, and to its Spanish branch (‘BES Spain’), to which Novo Banco is the successor.
3 Recitals 3, 4, 6, 7, 11, 12 and 16 of Directive 2001/24 are worded as follows: ‘(3) This Directive forms part of the Community legislative framework set up by Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions [(OJ 2000 L 126, p. 1)]. It follows therefrom that, while they are in operation, a credit institution and its branches form a single entity subject to the supervision of the competent authorities of the State where authorisation valid throughout the [European] Community was granted. (4) It would be particularly undesirable to relinquish such unity between an institution and its branches where it is necessary to adopt reorganisation measures or open winding-up proceedings. … (6) The administrative or judicial authorities of the home Member State must have sole power to decide upon and to implement the reorganisation measures provided for in the law and practices in force in that Member State. Owing to the difficulty of harmonising Member States’ laws and practices, it is necessary to establish mutual recognition by the Member States of the measures taken by each of them to restore to viability the credit institutions which it has authorised. (7) It is essential to guarantee that the reorganisation measures adopted by the administrative or judicial authorities of the home Member State and the measures adopted by persons or bodies appointed by those authorities to administer those reorganisation measures, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims and any other measure which could affect third parties’ existing rights, are effective in all Member States. … (11) It is necessary to notify third parties of the implementation of reorganisation measures in Member States where branches are situated when such measures could hinder the exercise of some of their rights. (12) The principle of equal treatment between creditors, as regards the opportunities open to them to take action, requires the administrative or judicial authorities of the home Member State to adopt such measures as are necessary for the creditors in the host Member State to be able to exercise their rights to take action within the time limit laid down. … (16) Equal treatment of creditors requires that the credit institution is wound up according to the principles of unity and universality, which require the administrative or judicial authorities of the home Member State to have sole jurisdiction and their decisions to be recognised and to be capable of producing in all the other Member States, without any formality, the effects ascribed to them by the law of the home Member State, except where this Directive provides otherwise.’
4 Article 1(1) of Directive 2001/24 states: ‘This Directive shall apply to credit institutions and their branches set up in Member States other than those in which they have their head offices, as defined in points (1) and (3) of Article 1 of Directive 2000/12/EC, subject to the conditions and exemptions laid down in Article 2(3) of that Directive.’
5 In accordance with the seventh indent of Article 2 of Directive 2001/24, ‘reorganisation measures’ are to mean ‘measures which are intended to preserve or [to] restore the financial situation of a credit institution and which could affect third parties’ pre-existing rights, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims’.
6 Title II of that directive, headed ‘Reorganisation measures’, comprises Articles 3 to 8.
7 Article 3 of that directive, headed ‘Adoption of reorganisation measures - applicable law’, provides: ‘1. The administrative or judicial authorities of the home Member State shall alone be empowered to decide on the implementation of one or more reorganisation measures in a credit institution, including branches established in other Member States. 2. The reorganisation measures shall be applied in accordance with the laws, regulations and procedures applicable in the home Member State, unless otherwise provided in this Directive. They shall be fully effective in accordance with the legislation of that Member State throughout the Community without any further formalities, including as against third parties in other Member States, even where the rules of the host Member State applicable to them do not provide for such measures or make their implementation subject to conditions which are not fulfilled. The reorganisation measures shall be effective throughout the Community once they become effective in the Member State where they have been taken.’
8 Article 6 of that directive, headed ‘Publication’, provides: ‘1. Where implementation of the reorganisation measures decided on pursuant to Article 3(1) and (2) is likely to affect the rights of third parties in a host Member State and where an appeal may be brought in the home Member State against the decision ordering the measure, the administrative or judicial authorities of the home Member State, the administrator or any person empowered to do so in the home Member State shall publish an extract from the decision in the Official Journal of the European Communities and in two national newspapers in each host Member State, in order in particular to facilitate the exercise of the right of appeal in good time. 2. The extract from the decision provided for in paragraph 1 shall be forwarded at the earliest opportunity, by the most appropriate route, to the Office for Official Publications of the European Communities and to the two national newspapers in each host Member State. 3. The Office for Official Publications of the European Communities shall publish the extract at the latest within twelve days of its dispatch. 4. The extract from the decision to be published shall specify, in the official language or languages of the Member States concerned, in particular the purpose and legal basis of the decision taken, the time limits for lodging appeals, specifically a clearly understandable indication of the date of expiry of the time limits, and the full address of the authorities or court competent to hear an appeal. 5. The reorganisation measures shall apply irrespective of the measures prescribed in paragraphs 1 to 3 and shall be fully effective as against creditors, unless the administrative or judicial authorities of the home Member State or the law of that State governing such measures provide otherwise.’
9 Article 32 of Directive 2001/24, headed, ‘Lawsuits pending’ provides: ‘The effects of reorganisation measures or winding-up proceedings on a pending lawsuit concerning an asset or a right of which the credit institution has been divested shall be governed solely by the law of the Member State in which the lawsuit is pending.’
10 Recital 65 of 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 (OJ 2014 L 173, p. 190) is worded as follows: ‘As an institution which is wholly or partially owned by one or more public authorities or controlled by the resolution authority, a bridge institution would have as its main purpose ensuring that essential financial services continue to be provided to the clients of the failing institution and that essential financial activities continue to be performed. The bridge institution should be operated as a viable going concern and be put back on the market when conditions are appropriate and within the period laid down in this Directive or wound up if not viable.’
11 Article 83 of Directive 2014/59, headed ‘Procedural obligations of resolution authorities’, provides: ‘1. Member States shall ensure that, as soon as reasonably practicable after taking a resolution action, resolution authorities comply with the requirements laid down in paragraphs 2, 3 and 4. … 4. The resolution authority shall publish or ensure the publication of a copy of the order or instrument by which the resolution action is taken, or a notice summarising the effects of the resolution action, and in particular the effects on retail customers and, if applicable, the terms and period of suspension or restriction referred to in Articles 69, 70 and 71, by the following means: (a) on its official website; (b) on the website of the competent authority, if different from the resolution authority, and on the website of [the European Banking Authority (EBA)]; (c) on the website of the institution under resolution; (d) where the shares, other instruments of ownership or debt instruments of the institution under resolution are admitted to trading on a regulated market, the means used for the disclosure of regulated information concerning the institution under resolution in accordance with Article 21(1) of Directive 2004/109/EC of the European Parliament and of the Council [of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (OJ 2004 L 390, p. 38)]. …’
12 Article 117 of Directive 2014/59, headed ‘Amendments to Directive 2001/24/EC’, provides, in paragraph 1, for the addition, in Article 1 of Directive 2001/24, of a paragraph 5, according to which ‘Articles 4 and 7 of this Directive shall not apply where Article 83 of Directive 2014/59/EU applies’.
13 Pursuant to Article 130(1) of Directive 2014/59, the deadline for transposing that directive was set as 31 December 2014.
14 In accordance with Article 131 of that directive, the directive entered into force on the twentieth day following the day of its publication in the Official Journal of the European Union, that is to say, on 2 July 2014.
15 Article 3(1) of Directive 93/13 provides: ‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’
16 Article 6(1) of that directive provides: ‘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.’
17 Article 7(1) of that directive 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.’
18 Ley 6/2005 sobre saneamiento y liquidación de las entidades de crédito (Law 6/2005 on the reorganisation and winding up of credit institutions) of 22 April 2005 (BOE No 97 of 23 April 2005, p. 13912) transposed Directive 2001/24 into Spanish law.
19 Article 19(1) of that law provides: ‘Where a reorganisation measure has been adopted or winding-up proceedings have been opened against a credit institution authorised in a Member State of the European Union which has at least one branch or provides services in Spain, that measure or those proceedings shall be fully effective in Spain without any further formalities, as soon as the effects thereof occur in the Member State in which the measure was adopted or the proceedings were opened.’
20 Article 145-C et seq. of the Regime Geral das Instituições de Crédito e Sociedades Financeiras (Regulatory Framework for Credit Institutions and Finance Companies), approved by the Decreto-Lei [que] Aprova o Regime Geral das Instituições de Crédito e Sociedades Financeiras (Decree-Law approving the Regulatory Framework for Credit Institutions and Finance Companies) of 31 December 1992 (Diário da República, series I-A, No 301-A/2012; ‘the RGICSF’), were inserted by Decreto-Lei No 31-A/2012 (Decree-Law No 31-A/2012) of 10 February 2012 (Diário da República, first series, No 30 of 10 February 2012). Those articles govern the measures for the reorganisation and winding up of credit institutions and finance companies.
21 On 11 December 2006, C.F.O., a consumer, concluded with BES Spain a loan contract secured by way of a mortgage containing a ‘floor’ clause, which specified a minimum interest rate of 2 %.
22 By a judgment of 9 May 2013, the Tribunal Supremo (Supreme Court, Spain) declared such a clause to be unfair because it lacked transparency. C.F.O. sent a request to BES Spain, asking it to disapply the clause concerned. BES Spain ceased applying that clause from June 2013.
23 Pursuant to the RGICSF and against the background of BES’s serious financial difficulties, the Board of Directors of the Bank of Portugal, by a decision of 3 August 2014, as amended by decision of 11 August 2014 (‘the August 2014 decision’), adopted ‘resolution’ measures in respect of that credit institution.
24 By the August 2014 decision, the Bank of Portugal set up a ‘bridge bank’ or ‘bridge institution’, that is to say, Novo Banco, to which the assets, liabilities and other off-balance sheet items of BES described in Annex 2 to that decision were transferred.
25 That Annex 2 listed certain liabilities which were nevertheless excluded from the transfer to Novo Banco and which, therefore, remained part of the assets and liabilities of BES. Those liabilities included those listed in paragraph 1(b)(v) of that Annex 2, namely ‘any responsibility or risk, in particular those arising from fraud or infringement of regulatory, criminal or administrative provisions or decisions’.
26 Following the transfer referred to in paragraph 24 of the present judgment, Novo Banco became the mortgagee under the loan contract concluded on 11 December 2006 and began to collect the monthly repayments of that loan from C.F.O.
27 On 3 October 2014, the Banco de España (Bank of Spain) published a notice in the Boletín Oficial del Estado, stating that, by the August 2014 decision, the Bank of Portugal had applied a resolution measure to BES consisting in the transfer in part of its business to Novo Banco, which would continue the ordinary business of BES without interruption, and that that measure was deemed to be a reorganisation measure within the meaning of Article 2 of Directive 2001/24.
28 On 29 December 2015, the Bank of Portugal adopted two decisions to amend and clarify Annex 2 to the August 2014 decision (‘the 29 December 2015 decisions’).
29 The 29 December 2015 decisions stated, inter alia, that ‘in particular, as of today, the following liabilities of BES have not been transferred to Novo Banco: … (v) all the claims and indemnities related to the alleged annulment of certain terms of loan contracts in which BES was the lender’.
30 As the result of delivery of the judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980), in January 2017, C.F.O. sent a request for the reimbursement of the sums received by BES Spain pursuant to the ‘floor’ clause of the mortgage loan.
31 By a letter of 21 March 2017, Novo Banco refused that request on the ground that BES Spain had acted with full transparency concerning the information relating to that ‘floor’ clause, which had been provided in the offer signed on 24 November 2006.
32 On 4 May 2017, C.F.O. brought an action against Novo Banco seeking, first, a finding that the clause in question was invalid on the ground that it was unfair and, second, that Novo Banco be ordered to reimburse him the sums unduly paid pursuant to that clause.
33 Novo Banco pleaded that the action was inadmissible, on the ground that it could not be sued because the liability for any claim that may have arisen in favour of C.F.O., for the reimbursement of the sums received by BES Spain pursuant to the ‘floor’ clause in question, had not been transferred to it by the reorganisation measures taken by the Bank of Portugal in respect of BES.
34 Both the court of first instance and, on appeal, the Audiencia Provincial (Provincial Court, Spain) rejected the plea raised by Novo Banco and upheld C.F.O.’s action.
35 Novo Banco accordingly lodged an appeal on a point of law before the Tribunal Supremo (Supreme Court), the referring court, which granted the application of the Bank of Portugal and the Resolution Fund for leave to intervene in support of that appeal.
36 The referring court observes, first, that the reorganisation measures taken in respect of BES are a matter of EU law, as the Court has already held in the judgment of 5 May 2022, BPC Lux 2 and Others (C‑83/20, EU:C:2022:346, paragraphs 28 to 30), and therefore the situation at issue in the main proceedings must be regarded as implementing that law within the meaning of Article 51(1) of the Charter.
37 Second, it recalls that, although the August 2014 decision and the decisions of 29 December 2015 are considered to constitute reorganisation measures within the meaning of Directive 2001/24, as the Court held in its judgment of 29 April 2021, Banco de Portugal and Others (C‑504/19, EU:C:2021:335), and although those decisions were likely to affect third parties, they were not published, contrary to the requirements of Article 6(1) to (4) of that directive. In that regard, the referring court notes that the information on the BES crisis and the setting up of Novo Banco communicated by the Bank of Portugal on its website, in English and in Portuguese, and to the Spanish media, was very generic and did not enable the customers concerned to identify the liabilities excluded from the transfer of assets and liabilities in question or to ascertain the limitation of their rights that that exclusion entailed. Novo Banco’s communications to its customers tended in fact to dismiss any possibility that those customers might have been affected by the reorganisation measures concerned. In addition, the referring court observes that the notice published by the Bank of Spain, referred to in paragraph 27 of the present judgment, similarly did not fulfil the conditions laid down in the provision in question.
38 The failure to publish the decision in the manner required in Article 6(1) to (4) of Directive 2001/24 prevented almost all the customers of the bank concerned who live in Spain from bringing proceedings against the decisions of the Bank of Portugal and meant that they brought actions against Novo Banco, against which, however, Novo Banco raised a plea of inadmissibility on the ground that the reorganisation measures concerned had not transferred the obligation to reimburse sums paid by those customers as the result of implementation of an unfair term.
39 According to the referring court, Article 6(5) of Directive 2001/24, pursuant to which reorganisation measures are to apply and be effective irrespective of the publication measures provided for in Article 6(1) to (3) of that directive, must not allow a prolonged failure to publicise, in the host Member State, the limitations or loss of rights that those measures impose on the customers of the entity concerned, or the legal remedies available to those affected and the rules governing those remedies.
40 The referring court therefore doubts that the obligation, set out in Article 3(2) of Directive 2001/24, to recognise, in the host Member State, the effects of the reorganisation measures adopted in the home Member State, can be compatible with the principle of effective judicial protection enshrined in Article 47 of the Charter, the prohibition of any discrimination on grounds of nationality, laid down in Article 21(2) of the Charter, and the principle of legal certainty, where such measures have not been published in the manner required by Article 6(1) to (4) of that directive.
41 Third, the referring court points out that Novo Banco gave a response on the substance of the request for reimbursement sent to it by C.F.O., stating that the ‘bank [had] acted with full transparency’. C.F.O. therefore brought his legal action fully confident in the belief that Novo Banco, as a banking institution acting under the control of a public authority acting pursuant to EU law, had taken over all the obligations and responsibilities of BES Spain associated with the contract in question.
42 The referring court is therefore uncertain, in a situation in which a consumer who resides in the host Member State was entitled to base a legitimate expectation on the conduct of a bridge bank, acting under the control of a public authority of the home Member State, whether the obligation to recognise the effects of reorganisation measures, which is set out in Article 3(2) of Directive 2001/24, is compatible with Article 47 of the Charter and the principle of legal certainty.
43 Fourth and last, it is not clear to the referring court whether the ‘fragmentation’ of the contractual relationship resulting from the reorganisation measures at issue in the main proceedings is lawful in the light of EU law, in particular in the light of Article 6(1) of Directive 93/13. According to that court, whereas the consumer concerned is bound by his obligations to Novo Banco, and pays to that bank the monthly payments under the mortgage loan initially concluded with BES Spain, Novo Banco has been released from the obligation to reimburse the sums received by BES Spain pursuant to the ‘floor’ clause in question, with the effect that that consumer bears the financial consequences of an unfair term, since he cannot, on any view, recover those sums from BES in view of the latter’s insolvency.
44 In that context, the referring court finds it strange that the rights of consumers do not take precedence over the stability of the financial system. In that regard, it observes that in its judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980) the Court held that case-law of the Tribunal Supremo (Supreme Court) was contrary to Article 6(1) of Directive 93/13 in so far as it limited the restitutory effects of the annulment of ‘floor’ clauses in a mortgage loan contract concluded by a seller or supplier with a consumer, in order to guarantee the stability of the Spanish financial system, which was at that time in serious crisis.
45 Furthermore, the referring court is of the view that the recognition of the effects of reorganisation measures where, in practice, it does not allow the consumer concerned to benefit from the right to recover sums paid as a result of the application of an unfair term whereas, at the same time, that consumer remains bound to pay the full amount of the monthly payments under the mortgage loan he or she has taken out, may constitute a disproportionate interference with that consumer’s right to property, contrary to Article 17 of the Charter.
46 In those circumstances the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice 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 [that directive] compatible with the fundamental right to effective judicial protection under Article 47 of 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 [93/13] and the general principle of legal certainty?’
47 J.M.F.T. and M.H.D.S. opened a securities account and concluded an investment portfolio management contract with BES Spain.
48 On 3 October 2007, they concluded an atypical financial contract (‘the AFC’) with BES Spain, a high-risk, complex financial product with a variable interest rate indexed to the shares of other credit institutions. The term of the AFC ended on 11 October 2014, on which date it was terminated and settled at a loss to the customers, by Novo Banco, which had, in the meantime, succeeded BES Spain.
49 J.M.F.T. and M.H.D.S. also concluded a contract with BES Spain, on 28 April 2008, relating to a structured financial product, the term of which ended on 28 April 2013 and was settled by BES Spain at a loss to the customers.
50 In August 2014, J.M.F.T. received a number of communications from Novo Banco stating that, following decisions made by the Bank of Portugal in respect of BES, banking relations would continue between the customers of BES Spain and the new entity, that is to say, Novo Banco, as well as a financial statement for the AFC.
51 On 17 April 2017, J.M.F.T. and M.H.D.S. brought an action against Novo Banco seeking, as their primary claim, the annulment of the two financial contracts on the grounds of an error of consent, on account of the deficient information provided to them by BES Spain, and the reciprocal reimbursement of the sums received by each party, together with interest from the date of each payment. In the alternative, J.M.F.T. and M.H.D.S. claimed that Novo Banco should be ordered to pay them compensation for the losses suffered as a result of the acquisition of the two financial products concerned, together with interest at the statutory rate from notification of the action.
52 Novo Banco pleaded that that action was inadmissible, on the ground that it could not be sued because the liability for any claim that might have arisen in favour of J.M.F.T. and M.H.D.S., either for reimbursement of the sums paid by them in connection with the financial products, as a result of any invalidity of the contracts concerned, or for compensation for the losses suffered because the customers were allegedly not informed of the risks involved in the financial instruments at issue in the main proceedings, had not been transferred to Novo Banco by the reorganisation measures adopted by the Bank of Portugal in respect of BES.
53 The action was upheld at first instance.
54 The Audiencia Provincial (Provincial Court) upheld the appeal brought by Novo Banco, in so far as it concerned the contract concluded on 28 April 2008, on the ground that that contract had been settled by BES Spain on 28 April 2013, that is to say, before Novo Banco was set up as part of implementation of the BES reorganisation measures. According to that court, the transaction concerned had therefore exhausted its effects prior to those measures, with the effect that no obligation or liability arising from that contract had been transferred to the bridge bank.
55 On the other hand, the Audiencia Provincial (Provincial Court) confirmed the judgment delivered at first instance in so far as concerned the CFA, which was managed by Novo Banco and then settled by it in October 2014. That court also stated that the August 2014 decision did not exclude from the transfer a structured product such as the AFC, but rather the debt instruments issued by the institutions belonging to BES.
56 The Tribunal Supremo (Supreme Court), hearing appeals against that judgment, including that of Novo Banco, supported by the Bank of Portugal and the Resolution Fund, is uncertain whether the obligation to recognise in the host Member State the effects of reorganisation measures taken in the home Member State, which is set out in Article 3(2) of Directive 2001/24, is lawful in the light of the provisions and principles of EU law, with the exception of Directive 93/13, referred to in the order for reference in Case C‑498/22, on the basis of reasoning substantially similar to that summarised in paragraphs 37 to 42 of the present judgment in relation to that order for reference.
57 In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice 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 [that directive] compatible with the fundamental right to effective judicial protection under Article 47 of 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 the contractual relationships entered into by the bank forming the subject of the reorganisation measures but leaves with the failing bank the obligation to reimburse to the customer the sums paid by the latter under contracts annulled because of an error of consent brought about by insufficient information provided by the bank 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 and the general principle of legal certainty?’
58 On 17 November 2014, Proyectos, Obras y Servicios de Badajoz SL (‘POSB’) acquired on the secondary market a senior bond entitled ‘Senior Bond NB 6.875% maturity July 2016’, the term of which ended on 15 July 2016, for EUR 100000.
59 Although that bond had been issued by BES, at the time it was acquired, through a third party investment undertaking, by PSOB, that unsubordinated debt instrument formed part of the assets and liabilities of Novo Banco, to which the liability for that bond had been transferred pursuant to the August 2014 decision.
60 In July 2015, Novo Banco paid income to POSB in respect of the mandatory return on the bond for the period 2014/2015.
61 When the term of that bond ended, Novo Banco neither paid the mandatory return on the bond for the period 2015/2016 nor reimbursed the nominal value of the bond to POSB.
62 In response to a complaint made by POSB, Novo Banco stated that its refusal to pay was founded on the 29 December 2015 decisions, by which the liabilities relating to that bond had been ‘transferred back’ from Novo Banco to BES by the Bank of Portugal. Those decisions provided, inter alia, for the ‘transfer back’, from Novo Banco to BES, of unsubordinated bonds, including the rights and liabilities arising from the unsubordinated debt instruments listed in Annex 2B to those decisions, which included the ‘Senior Bond[s] NB 6.875% maturity July 2016’.
63 On 25 June 2017, POSB brought an action against Novo Banco for payment of the return on that bond for the period 2015/2016 and for reimbursement of the amount corresponding to the nominal value of the bond.
64 Novo Banco pleaded that that action was inadmissible, on the ground that it could not be sued because the liabilities associated with that bond had been ‘transferred back’ to BES.
65 Both the court hearing the action at first instance and, on appeal, the Audiencia Provincial (Provincial Court) rejected the plea raised by Novo Banco and upheld the action.
66 Hearing an appeal brought by Novo Banco, supported by the Bank of Portugal and the Resolution Fund, the Tribunal Supremo (Supreme Court) is uncertain, in the first place, whether the obligation to recognise in the host Member State the effects of reorganisation measures taken in the home Member State, which is set out in Article 3(2) of Directive 2001/24, is lawful in the light of Article 47 of the Charter, the principles of legal certainty and equality and the principle of the prohibition of any discrimination on grounds of nationality under Article 21(2) of the Charter, on the basis of reasoning substantially similar to that summarised in paragraphs 37 to 40 of the present judgment in relation to the order for reference in Case C‑498/22.
67 In the second place, the referring court observes that the fact that it holds an unsubordinated debt instrument affords POSB the protection of the fundamental right to property enshrined in Article 17 of the Charter. According to that court, the ‘transfer back’ to BES of the responsibilities and obligations associated with that debt instrument means, in practice, that POSB is denied its right to property, since BES is an insolvent bank that has been stripped of its assets.
68 It is true that the referring court states that it is fully aware that the fundamental right enshrined in Article 17 of the Charter is not absolute and that the holders of such a right made be deprived of the property they hold, in the public interest in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for its loss.
69 The referring court asserts that one of those cases is that of shareholders and creditors in the event of resolution measures taken in respect of a failing bank. However, it points out that POSB is neither a shareholder nor a creditor of BES but rather, at the time it acquired the unsubordinated debt instrument, became a creditor of a capitalised solvent bank, that is to say, Novo Banco.
70 Accordingly, the referring court holds that to deprive POSB of its property, without fair compensation paid in good time, on the basis of powers to ‘transfer back’ granted to the Bank of Portugal by a decision of that same authority which was not given the publicity required under Directive 2001/24, may constitute an infringement of the principle of legal certainty, and disproportionate interference with the fundamental right to property enshrined in Article 17 of the Charter.
71 In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice 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], 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 transferred back to the failing bank to which the resolution measures were applied the obligations and responsibilities arising from a senior bond which was acquired by a third party while those obligations and responsibilities were in the ownership of the “bridge bank” compatible with the fundamental right to property under Article 17 of the Charter and the general principle of legal certainty?’
72 In accordance with Article 54 of the Rules of Procedure of the Court of Justice, the President of the Court of Justice, by decision of 27 September 2022, joined Cases C‑498/22 to C‑500/22 for the purposes of the written and oral parts of the procedure and of the judgment.
73 By its first question in Cases C‑498/22 to C‑500/22, the referring court asks, in essence, whether Article 3(2) and Article 6 of Directive 2001/24, read in the light of Article 21(2) and the first paragraph of Article 47 of the Charter and of the principle of legal certainty, must be interpreted as precluding, where the publication provided for in Article 6(1) of that directive has not taken place, the recognition, by a court of a Member State other than the home Member State, of the effects of a reorganisation measure adopted in respect of a credit institution before proceedings were brought before that court, which transferred the obligations and responsibilities of that credit institution, in part, to a bridge bank.
74 As the referring court notes, it is common ground that the August 2014 decision and the 29 December 2015 decisions, adopted by the Bank of Portugal in respect of BES, by which some of the assets and liabilities of that credit institution were transferred to the bridge bank, that is to say, Novo Banco, constitute reorganisation measures within the meaning of Directive 2001/24.
75 As is apparent, in particular, from recitals 4 and 16 of Directive 2001/24, that directive is based on the principles of unity and universality and establishes as a principle the mutual recognition of reorganisation measures and of their effects (see, to that effect, judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 33), without seeking to harmonise national legislation in that field (see, to that effect, judgment of 13 September 2022, Banka Slovenije, C‑45/21, EU:C:2022:670, paragraph 121 and the case-law cited).
76 Under Article 3(2) of Directive 2001/24, reorganisation measures are, in principle, to be applied in accordance with the law of the home Member State. First, it can be seen from the second subparagraph of that provision that such measures produce their effects in accordance with the legislation of that Member State throughout the Union without any further formalities, including as against third parties in other Member States, even where the rules of the host Member State applicable to them do not provide for such measures or make their implementation subject to conditions which are not fulfilled. Second, in accordance with the third subparagraph of that provision, reorganisation measures are to produce their effects throughout the Union once they become effective in the home Member State.
77 Accordingly, those provisions provide that, in principle, the law of the Member State where the proceedings were brought (the lex concursus) governs the reorganisation measures of credit institutions and their effects, subject to a number of exceptions expressly provided for in Directive 2001/24, where the situation requires an unavoidable qualification of the principle that the law of the home Member State applies (see, to that effect, judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraphs 34 and 35 and the case-law cited).
78 As regards the publication of such reorganisation measures, it should be pointed out first of all that, under Article 6(1) of Directive 2001/24, where implementation of the reorganisation measures decided on pursuant to Article 3(1) and (2) of that directive is likely to affect the rights of third parties in the host Member State and where an appeal may be brought in the home Member State against the decision ordering those measures, the administrative or judicial authorities of the home Member State, the administrator or any person empowered to do so in that Member State is to publish an extract from the decision in the Official Journal of the European Union and in two national newspapers in each host Member State, in order in particular to facilitate the exercise of the right of appeal in good time.
79 Under Article 6(1) of Directive 2001/24, the obligation to publish reorganisation measures is therefore subject to two cumulative conditions. First, those measures must be likely to affect the rights of third parties in the host Member State and, second, an appeal must be available in the home Member State against the decision ordering those measures.
80 As the referring court is inclined to find, those conditions appear to be met in relation to the reorganisation measures at issue in the cases in the main proceedings. First, as the Portuguese Government has confirmed in its written observations and in accordance with the provisions of the RGICSF, a decision of the Bank of Portugal adopting such measures may be the subject of an appeal, in Portugal, as provided for by the legislation on administrative proceedings. Second, the private persons in the cases in the main proceedings, all resident or established in the host Member State and customers of the credit institution forming the subject of those measures, are likely to be affected by them.
81 It is therefore not necessary, in the context of the present reference for a preliminary ruling, to examine whether those conditions are valid in the light of Article 47 of the Charter.
82 Next, pursuant to Article 6(4) of Directive 2001/24, it is for the competent authorities of the home Member State to publish an extract of the decision taken, its purpose and legal basis, the time limits for lodging appeals, specifically a clearly understandable indication of the date on which the time limits expire, and the full address of the authorities or court competent to hear an appeal.
83 Since the obligation on the competent authorities of the home Member State to publish, inter alia, details of the time limits for appeals can, logically, concern only the appeals that can be brought in that Member State, it must be found that the purpose of Article 6(1) to (4) of Directive 2001/24 is to regulate the information provided to creditors of the credit institution concerned so that they can, in the home Member State, exercise their right of appeal against decisions ordering reorganisation measures in respect of that institution, in compliance with the principle of equal treatment between those creditors as set out in recital 12 of that directive.
84 Last, it should be borne in mind that, under Article 6(5) of Directive 2001/24, the reorganisation measures are to apply irrespective of the publication measures prescribed in Article 6(1) to (3) and are to be fully effective as against creditors, unless the administrative or judicial authorities of the home Member State or the law of that State governing such measures provide otherwise.
85 It follows that failure to publish the reorganisation measures adopted in the home Member State, in accordance with the rules and by the methods established in Article 6(1) to (4) of Directive 2001/24, does not call into question the principles of unity and universality or the principle of the mutual recognition of the effects of those measures in the host Member State, as those principles are set out in paragraphs 75 and 76 of the present judgment. Such a failure to publish cannot therefore lead to those measures being invalid or their effects being unenforceable in the host Member State.
86 Nevertheless, it should be noted that Directive 2001/24 merely precludes penalties being imposed, due to a failure to publish reorganisation measures, in the form of the invalidity of those measures or the unenforceability of their effects in the host Member State, and does not establish or, a fortiori, harmonise other types of penalty. Consequently, it is for the national legal system of each Member State to lay down procedural rules to ensure the safeguarding of rights which individuals derive from EU law. Those rules must not, however, be less favourable than those governing similar domestic remedies (principle of equivalence) and must not render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness) (judgment of 20 September 2018, Rudigier, C‑518/17, EU:C:2018:757, paragraph 61 and the case-law cited).
87 Further, when the Member States implement EU law, they are required to ensure compliance with the right to an effective remedy enshrined in the first paragraph of Article 47 of the Charter, a provision which constitutes a reaffirmation of the principle of effective judicial protection (judgment of 15 April 2021, État belge (Circumstances subsequent to a transfer decision), C‑194/19, EU:C:2021:270, paragraph 43).
88 As stated in paragraph 83 of the present judgment, the purpose of the publication required under Article 6 of Directive 2001/24 is to ensure the protection, in the home Member State, of the right of the persons concerned to appeal against decisions ordering reorganisation measures in respect of a credit institution, including in particular the right of appeal of creditors of that institution established in the host Member State.
89 It follows that, where the reorganisation measures have not been published in accordance with the requirements laid down in Article 6 of Directive 2001/24, the law of the home Member State must enable the persons whose rights guaranteed by EU law are affected by those measures, where those persons are established or reside in the host Member State, to lodge an appeal against those measures within a reasonable period from the time at which they were notified of them or from the time at which they became aware of or should reasonably have become aware of them.
90 In that regard, the Court has acknowledged that it is compatible with the principle of effectiveness for reasonable time limits for bringing proceedings to be laid down in the interests of legal certainty, which protects both the person concerned and the authorities concerned (see, to that effect, judgment of 24 March 2009, Danske Slagterier, C‑445/06, EU:C:2009:178, paragraph 32 and the case-law cited). The Court has also held that there is no excessive difficulty where periods for bringing proceedings are imposed which start to run only from the date on which the persons concerned became aware of the measures adversely affecting them or, at least, ought to have been aware of them (see, to that effect, judgment of 7 November 2019, Flausch and Others, C‑280/18, EU:C:2019:928, paragraph 55 and the case-law cited).
91 First, in order to determine the time from which the customers in the cases in the main proceedings became aware or should have become aware of the decisions of the Bank of Portugal, the referring court must therefore take into account in particular, first, - irrespective of the fact that, as the Advocate General noted in points 77 and 86 of his Opinion, the provisions of Directive 2014/59 do not apply to the disputes in the main proceedings - the information published by the Portuguese authorities under Article 83(4) of that directive, and the information provided by BES and/or Novo Banco. Second, the referring court must take into consideration the observations of the Portuguese Government, where applicable confirmed by the case-law of the courts of the home Member State, according to which the procedural law of that Member State guarantees that, where an administrative measure, such as a decision of the Bank of Portugal reorganising a credit institution, is not published, that measure can be the subject matter of an appeal from the time the injured parties became aware or should have become aware of that measure or of its implementation, whichever occurs first.
92 Furthermore, the first paragraph of Article 47 of the Charter does not preclude the imposition of reasonable time limits for lodging an appeal to challenge a decision of a national authority that implements EU law and is likely to infringe one of the rights that private persons derive from that law.
93 Moreover, neither Article 47 of the Charter nor the principle of effectiveness require that an appeal, laid down by the law of the home Member State against a decision by which a national authority adopts a reorganisation measure, must have suspensory effect whereby the effects of that decision are automatically suspended pending the outcome of such an appeal.
94 As regards, next, the principle of non-discrimination on grounds of nationality, guaranteed in Article 21(2) of the Charter, it has neither been claimed nor demonstrated that recognition of the effects of the reorganisation measures in the host Member State, as required under Article 3(2) of Directive 2001/24, is applied differently depending on the nationality of the person subject to the law.
95 Last, as regards the principle of legal certainty, it should be borne in mind that, according to settled case-law, that principle requires, first, that the rules of law be clear and precise and, second, that their application be foreseeable for those subject to the law, in particular where they may have adverse consequences for individuals and undertakings. Specifically, in order to meet the requirements of that principle, legislation must enable those concerned to know precisely the extent of the obligations imposed on them, and those persons must be able to ascertain unequivocally their rights and obligations and take steps accordingly (see, to that effect, judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 51 and the case-law cited).
96 In the present case, first, according to the provisions of Directive 2001/24, the host Member State must ensure that the effects of the reorganisation measures adopted in the home Member State are recognised in its territory, without any further formalities, notwithstanding the fact that they have not been published in accordance with Article 6(1) of that directive. Second, it should be noted that, at the time when Novo Banco’s customers brought their respective actions before the Spanish courts in 2017, the reorganisation measures had been the subject of various publicity measures, taken by both the Portuguese authorities and the Spanish authorities. It follows that, subject to the checks that it will be for the referring court to carry out, at the time they brought their respective actions, Novo Banco’s customers were in possession of all the information necessary to make a decision on whether to bring those actions, in full knowledge of the facts, and to identify with certainty the entity against which those actions should be brought.
97 In the light of the foregoing, the answer to the first question is that Article 3(2) and Article 6 of Directive 2001/24, read in the light of Article 21(2) and the first paragraph of Article 47 of the Charter and of the principle of legal certainty, must be interpreted as not precluding, where the publication provided for in Article 6(1) of that directive has not taken place, the recognition, by a court of a Member State other than the home Member State, of the effects of a reorganisation measure adopted in respect of a credit institution before proceedings were brought before that court, which transferred the obligations and responsibilities of that credit institution, in part, to a bridge bank.
98 By its second question in Cases C‑498/22 and C‑499/22, the referring court asks, in essence, whether Article 3(2) of Directive 2001/24, read in the light of the first paragraph of Article 47 of the Charter and of the principle of legal certainty, must be interpreted as precluding the recognition, in the host Member State, of the effects of a reorganisation measure taken in the home Member State in respect of a credit institution which partially transferred the obligations and responsibilities of that credit institution to a bridge bank acting under the control of a public authority applying EU law, where the customers of that bridge bank claim that they had a legitimate expectation that that bridge bank, having regard to its subsequent conduct, had also assumed the liabilities corresponding to all of the obligations and responsibilities of that credit institution in relation to those customers.
99 As a preliminary point, it should be noted that that question is based on the premiss that the customers of a bridge bank, such as Novo Banco, the capital of which was temporarily held by a public authority of a Member State, with a view to its privatisation in due course, are entitled to rely on the principle of the protection of legitimate expectations against that bridge bank.
100 According to the case-law of the Court, the principle of the protection of legitimate expectations is one of the fundamental principles of the European Union (judgment of 26 July 2017, Europa Way and Persidera, C‑560/15, EU:C:2017:593, paragraph 79 and the case-law cited), which must be observed not only by the EU institutions but also by Member States when they adopt measures by which they implement EU law, in particular in the exercise of the powers conferred on them under EU directives (see, to that effect, judgments of 26 July 2017, Europa Way and Persidera, C‑560/15, EU:C:2017:593, paragraph 79, and of 17 November 2022, Avicarvil Farms, C‑443/21, EU:C:2022:899, paragraph 38 and the case-law cited).
101 The right to rely on that principle extends to any person in a situation in which an administrative authority has caused that person to entertain expectations which are justified by precise assurances provided to him or her (judgments of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 44, and of 20 January 2022, Air Berlin, C‑165/20, EU:C:2022:42, paragraph 51 and the case-law cited).
102 By contrast, the Court has refused to allow that principle to be invoked by an operator governed by private law in order to claim a right to deduct input value added tax (VAT) (see, to that effect, judgment of 21 February 2018, Kreuzmayr, C‑628/16, EU:C:2018:84, paragraph 47), or in the course of proceedings exclusively between national administrative authorities (see, to that effect, judgment of 31 March 2022, Smetna palata na Republika Bulgaria, C‑195/21, EU:C:2022:239, paragraph 65 and the case-law cited), with the effect that, in EU law, the right to rely on that principle extends to a person only in respect of precise assurances provided to that person by a public authority.
103 In the present case, as the Advocate General stated in point 98 of his Opinion, to regard a bridge bank, such as Novo Banco, as an administrative authority implementing EU law, even though it was set up in the form of a credit institution governed by private law without any power falling outside the scope of the ordinary law for the purpose of performing a public service mission, would effectively go beyond the situations in which a person may invoke the principle of the protection of legitimate expectations. The fact that the share capital of that credit institution was temporarily controlled by a public authority, such as the Resolution Fund, with a view to its privatisation, cannot alter that finding. That fact alone does not turn a credit institution operating in the competitive market for banking and financial services into a national administrative authority.
104 The answer to the second question referred in Cases C‑498/22 and C‑499/22 is therefore that Article 3(2) of Directive 2001/24, read in the light of the first paragraph of Article 47 of the Charter and of the principle of legal certainty, must be interpreted as meaning that individuals cannot rely on the principle of the protection of legitimate expectations against a bridge bank, a body governed by private law with no powers going beyond the ordinary law, set up in the context of reorganisation measures in respect of a credit institution of which those individuals were initially customers, in order to hold that bridge bank liable in respect of pre-contractual and contractual obligations related to contracts previously concluded with that credit institution. The mere fact that that credit institution was temporarily controlled by a public authority, with a view to its privatisation, cannot turn that credit institution, which operates on the competitive market for banking and financial services, into a national administrative authority.
105 By its third questions in Cases C‑498/22 and C‑499/22 and its second question in Case C‑500/22, the referring court asks, in essence, whether Article 17 of the Charter and the principle of legal certainty must be interpreted as precluding the recognition, in the host Member State, of the effects of reorganisation measures adopted in the home Member State under Directive 2001/24, which provide that a bridge bank is to be set up and that the obligation to pay sums payable in connection with pre-contractual or contractual liability is to be retained by the bank that is subject to those measures. Furthermore, the referring court is uncertain, in Cases C‑498/22 and C‑499/22, whether such recognition is compatible with Article 38 of the Charter and, in Case C‑498/22, with Article 6(1) of Directive 93/13.
106 As a preliminary point, it is necessary to reject the line of argument, invoked by Novo Banco in particular, alleging that the third question referred in Case C‑499/22 is inadmissible on the ground that it relates only to the principle set out in Article 38 of the Charter and that no provision of secondary consumer protection law, including Directive 93/13, applies in the present case. First, the recognition, in the host Member State, of the effects of a reorganisation measure in respect of a credit institution, adopted in the home Member State and which transposes the obligation under Article 3(2) of Directive 2001/24, amounts to implementation of EU law within the meaning of Article 51(1) of the Charter. The Charter therefore applies to the dispute in the main proceedings in Case C‑499/22 and it is necessary to provide a substantive answer to that question. Second and in any event, it is clear from the wording itself of that second question that the referring court is asking the Court not only about compliance with the principle set out in Article 38 of the Charter, but also about compliance with the right to property, as guaranteed in Article 17 of the Charter.
107 It is therefore necessary to examine in turn whether Article 17 of the Charter, the principle of legal certainty, Article 38 of the Charter and Article 6(1) of Directive 93/13 must be interpreted as precluding the recognition of the effects of reorganisation measures adopted in the home Member State under Directive 2001/24, which provide for that a bridge bank is to be set up and that the obligation to pay sums payable in connection with pre-contractual or contractual liability is to be retained by the bank that is subject to those measures.
108 Under Article 17(1) of the Charter, everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property, for its part, may be regulated by law in so far as is necessary for the general interest. Moreover, in accordance with Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter, such as the right to property, must be provided for by law and respect the essence of those rights and freedoms, and, subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
109 As regards, in the first place, the protection afforded by Article 17(1) of the Charter, according to settled case-law, that protection concerns rights with an asset value creating an established legal position under the legal system concerned, enabling the holder to exercise those rights autonomously and for the holder’s own benefit (see, to that effect, judgment of 1 August 2022, HOLD Alapkezelő, C‑352/20, EU:C:2022:606, paragraph 72 and the case-law cited). The Court has accordingly held that shares and bonds tradeable on capital markets were rights of that nature capable of enjoying the protection guaranteed by Article 17(1) of the Charter (see, to that effect, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraphs 40 and 43).
110 It is therefore necessary to determine whether the situation at issue in each of the cases in the main proceedings concerns a right with an asset value, which creates an established legal position enabling the holder to exercise that right autonomously and for the holder’s own benefit.
111 As regards, first of all, the senior bond purchased by POSB on the secondary capital market, at issue in the main proceedings in Case C‑500/22, there is no doubt, having regard to the case-law referred to in paragraph 109 of the present judgment, that a senior bond of that nature, in particular inasmuch as it entails in principle the payment of an annual return on the bond and, on maturity, the repayment of its nominal value, has an asset value and confers on its holder an established legal position enabling the autonomous exercise of the rights to which it gives rise.
112 Next, as regards the claim at issue in the dispute in the main proceedings in Case C‑498/22, it can be seen from the case-law of the European Court of Human Rights on Article 1 of Additional Protocol No 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Paris on 20 March 1952, that the concept of ‘possessions’ can include both ‘existing possessions’ and ‘assets’, including claims, in respect of which the applicant can argue that he or she has at least a ‘legitimate expectation’ of obtaining effective enjoyment of a property right. Where the proprietary interest concerned is in the nature of a claim, it may be regarded as an ‘asset’ only where it has a sufficient legal basis, in particular where it is confirmed by settled case-law (see, to that effect, ECtHR, 28 September 2004, Kopecký v. Slovakia, CE:ECHR:2004:0928JUD004491298, §§ 35 and 52, and ECtHR, 20 March 2018, Radomilja and Others v. Croatia, CE:ECHR:2018:0320JUD003768510, § 142).
113 As the Advocate General noted in point 111 of his Opinion, the claim at issue in the main proceedings in Case C‑498/22 relates to the obligation in principle of a credit institution, in accordance with the case-law on the interpretation of Article 6(1) of Directive 93/13, to refund interest collected pursuant to a ‘floor’ clause that has been declared unfair, contained in a mortgage loan contract concluded with a consumer, with no power to limit the refund of that interest to the period after the declaration that the term concerned is unfair (see, to that effect, judgments of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 61 and 62, and of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraphs 57 and 58). It follows that the holder of that claim could at least argue that he or she has a ‘legitimate expectation’ of obtaining effective enjoyment of a property right, and can therefore enjoy the protection guaranteed by Article 17(1) of the Charter.
114 Last, as regards the claim at issue in the main proceedings in Case C‑499/22, that is to say, the claim relating to the deficiency of the pre-contractual information about the risks associated with the financial instrument that J.M.F.T. and M.H.D.S. purchased from BES, since the adequacy of pre-contractual information must be assessed by a court on a case-by-case basis, in relation to both its existence and its scope, it will be for the referring court to examine whether that claim satisfies the requirements set out in paragraph 110 of the present judgment and, in particular, whether the national case-law recognising the obligation on a credit institution to provide pre-contractual information is sufficiently established to enable a person invoking an infringement of that obligation to have a ‘legitimate expectation’ of obtaining effective enjoyment of that claim.
115 As regards, in the second place, whether, in so far as those claims are concerned, the recognition, in the host Member State, of the effects of the reorganisation measures adopted in respect of BES, in accordance with Article 3(2) of Directive 2001/24, gives rise to a deprivation of property for the purposes of the second sentence of Article 17(1) of the Charter or is akin to regulating the use of property within the meaning of the third sentence of Article 17(1) of the Charter, the Court has held that the adoption, by the home Member State, of those reorganisation measures, which provide, inter alia, for the transfer of a credit institution’s assets to a bridge bank, amounts to regulating the use of property within the meaning of that latter provision, in a manner liable to infringe the right to property of the creditors of that credit institution, such as the bondholders, whose debt instruments were not transferred to that bridge bank (see, to that effect, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 50).
116 The fact that the effects of the reorganisation measures were made applicable in the host Member State, as a result of the obligation mutually to recognise those measures laid down in Article 3(2) of Directive 2001/24, does not alter that analysis, as the Advocate General stated, in essence, in point 117 of his Opinion.
117 It remains to be determined whether, in accordance with a combined reading of the third sentence of Article 17(1) and Article 52(1) of the Charter, the effects in the host Member State of the reorganisation measures under which the claims at issue in the main proceedings were assigned to the assets of BES Spain are provided for by law, respect the essence of the right to property and are proportionate, on the premiss that compliance with the principle of proportionality laid down by Article 52(1) of the Charter must be ensured in the light of the general interest invoked to justify such reorganisation measures (see, by analogy, judgment of 21 May 2019, Commission v Hungary (Usufruct over agricultural land), C‑235/17, EU:C:2019:432, paragraphs 88 and 89).
118 In the present case, first of all, the limitations that the reorganisation measures concerned and the recognition of their effects in the host Member State entail for the rights of the creditors of the credit institution flow both from the provisions of Directive 2001/24 and from the national legislation transposing that directive, be that in Portugal by means of the RGICSF, on the basis of which those measures were adopted, or in Spain by means of Law 6/2005, pursuant to which the effects of those measures were recognised in that Member State. Furthermore, while it is true that the claim at issue in the main proceedings in Case C‑500/22, of which BES was divested pursuant to the August 2014 decision, was retransferred to the liabilities of BES, with retroactive effect, pursuant to the 29 December 2015 decisions, it appears that the retroactive amendment of those measures was specifically permitted not only by the relevant provisions of the RGICSF but also in the August 2014 decision, and that, in accordance with the case-law, Directive 2001/24 does not prevent such an amendment by the home Member State (see, to that effect, judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 61 and the case-law cited). It follows that the limitations of the rights of the creditors of the credit institution concerned are provided for by law within the meaning of Article 52(1) of the Charter.
119 Also, since the reorganisation measures in respect of the credit institution concerned and the recognition of their effects in the host Member State do not constitute a deprivation of property but, as pointed out in paragraph 115 of the present judgment, regulate the use of property, they cannot undermine the essence or the very substance of the right to property (see, to that effect, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 53).
120 Moreover, it must be found that the adoption of those measures and the recognition of their effects in the host Member State, both as laid down in Directive 2001/24, meet objectives of general interest recognised by the European Union, for the purposes of the third sentence of Article 17(1) and Article 52(1) of the Charter. As the Court has acknowledged previously, the adoption of such measures in the banking sector corresponds to an objective of general interest pursued by the European Union, namely the objective of ensuring the stability of the banking system, in particular that of the euro area, and of preventing a systemic risk (see, to that effect, judgments of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraphs 71 and 72, and of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 54 and the case-law cited).
121 Last, as regards whether the limitations that the reorganisation measures and the recognition of their effects in the host Member State entail for the exercise of the rights under Article 17(1) of the Charter go beyond what is necessary to achieve the objectives of general interest at issue in the main proceedings, it must be borne in mind, first, that given the particular economic context, Member States have broad discretion when adopting economic decisions and are in the best position to determine the measures likely to achieve the objective pursued (see, to that effect, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 55 and the case-law cited).
122 In that regard, as the Advocate General stated, in essence, in point 119 of his Opinion, reorganisation measures make sense only if the liabilities and assets of the failing credit institution, namely, here, BES, are triaged in order to achieve the objectives of general interest pursued by those measures, that is to say, ensuring the stability of the financial system and preventing a systemic risk.
123 Second, as the Spanish and Portuguese Governments have noted, in essence, in their written observations, those measures and the recognition of their effects in the host Member State appear to comply with the principle of proportionality since, under the provisions of the RGICSF, the creditors whose claims were not transferred to the bridge bank are entitled to receive an amount not less than that which they should have received if the credit institution concerned had been placed into liquidation under the ordinary insolvency procedures (see, to that effect, judgment of 5 May 2022, BPC Lux 2 and Others, C‑83/20, EU:C:2022:346, paragraph 58).
124 However, it should be noted that the claim at issue in the main proceedings in Case C‑500/22 arose under a contract of sale not concluded with BES but with Novo Banco, and relates to a bond which, on the date on which that contract was concluded, formed part of the assets and liabilities of Novo Banco, pursuant to the August 2014 decision, as the liabilities associated with that bond were incorporated into the liabilities of BES only as a result of the 29 December 2015 decisions.
125 Admittedly, as noted in paragraph 118 of the present judgment, Directive 2001/24 does not prevent the home Member State from amending the legal rules applicable to reorganisation measures, including with retroactive effect.
126 Nevertheless, that does not necessarily mean that such retroactive reorganisation measures are not capable, in any circumstances, of infringing the right to property as guaranteed in Article 17 of the Charter. In accordance with Article 52(1) of the Charter, and as stated in paragraph 117 of the present judgment, those reorganisation measures must comply with the principle of proportionality, on the premiss that compliance with that principle must be ensured in the light of the general interest invoked to justify them.
127 In the present case, it will be for the referring court to determine whether that latter requirement has been complied with, having regard in particular, first, to the fact that paragraph 2 of Annex 2 to the August 2014 decision expressly provided that certain assets and liabilities could be transferred or ‘transferred back’ between Novo Banco and BES and, second, to the fact that the creditor concerned in Case C‑500/22 is a professional.
128 In respect of the alleged infringement of the principle of legal certainty, the requirements of which are set out in paragraph 95 of the present judgment, it should be noted that, in accordance with the seventh indent of Article 2 of Directive 2001/24, reorganisation measures are measures which are intended to preserve or restore the financial situation of a credit institution and which could affect third parties’ pre-existing rights, including measures involving the possibility of a reduction of claims. Those measures are to be effective in accordance with the legislation of the Member State where they were adopted, throughout the European Union, without any further formalities, including as against third parties in other Member States, in accordance with Article 3(2) of that directive.
129 Since it is not in dispute that the August 2014 decision and the 29 December 2015 decisions are reorganisation measures within the meaning of Directive 2001/24, which were adopted under the RGICSF and triaged the liabilities and assets of the failing credit institution, the creditors in the cases in the main proceedings were entitled to expect that certain responsibilities, such as that deriving from the deficiency of the pre-contractual information given by BES, at issue in the main proceedings in Case C‑499/22, and certain risks, such as those forming the subject matter of the disputes in the main proceedings in Cases C‑498/22 and C‑500/22, would not be transferred to the bridge bank concerned. It is also apparent from paragraph 1(b)(v) of Annex 2 to the August 2014 decision that the assets and liabilities of BES continued to include ‘any liability or [any] risk, in particular those arising from fraud or infringement of regulatory, criminal or administrative provisions or decisions’.
130 Nevertheless, as stated in paragraph 118 of the present judgment, pursuant to the August 2014 decision, BES was divested of the claim at issue in Case C‑500/22, since that claim was incorporated in the liabilities of BES, with retroactive effect, only pursuant to the 29 December 2015 decisions, in accordance with the relevant provisions of the RGICSF.
131 As the Court has noted, the principle of legal certainty precludes the retroactive application of a new rule unless an aim of general interest so demands and the legitimate expectations of those concerned are duly respected (judgment of 25 January 2022, VYSOČINA WIND, C‑181/20, EU:C:2022:51, paragraphs 49 and 59).
132 In that regard, the retroactive change in the identity of the debtor in relation to the claim at issue in Case C‑500/22 can reasonably be justified by the objective of general interest consisting in ensuring the stability of the banking system and avoiding a systemic risk. Having regard to the factors referred to in paragraph 127 of the present judgment, it is not inconceivable that the legitimate expectations of the creditor in that case were duly respected, a point which will in any event be for the referring court to determine.
133 It is necessary, last, to examine the questions raised by the referring court in Cases C‑498/22 and C‑499/22 regarding whether the reorganisation measures concerned and the recognition of their effects in the host Member State are compatible with consumer protection.
134 In relation, first, to Case C‑499/22, the Court notes that those questions concern exclusively the interpretation of Article 38 of the Charter, which provides that EU policies are to ensure a high level of consumer protection. However, the referring court has not indicated specifically whether the customers of Novo Banco in respect of whom that case arose are consumers by virtue of an act of EU law, from which they could, if applicable, derive rights.
135 In those circumstances, to answer that part of the third question put in Case C‑499/22 would amount to providing an advisory opinion on a hypothetical question, in disregard of the task assigned to the Court in the context of the judicial cooperation established by Article 267 TFEU (see, to that effect, judgment of 22 February 2022, Stichting Rookpreventie Jeugd and Others, C‑160/20, EU:C:2022:101, paragraph 84 and the case-law cited).
136 Second and by contrast, the same is not so of the dispute in the main proceedings in Case C‑498/22. It is apparent from the reasoning in the request for a preliminary ruling that in that dispute C.F.O., as a consumer under Directive 93/13, is claiming retroactive reimbursement of the sums unduly paid pursuant to the ‘floor’ clause, which a court has held to be unfair, in the mortgage loan contract that he had concluded initially with BES Spain and which was transferred to Novo Banco by virtue of the reorganisation measures, as they are recognised in Spain. Specifically, C.F.O. submits that, in the light of the interpretation of Article 6(1) of Directive 93/13 upheld by the Court in the judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980), the unfairness of the ‘floor’ clause means that all the amounts that he paid unduly pursuant to that clause must be repaid, and that it is Novo Bank that must repay them.
137 In that regard, it must be borne in mind that the requirement to ensure a high level of consumer protection in EU policies, as set out in Article 38 of the Charter, applies especially to the implementation of Directive 93/13 (see, to that effect, judgment of 19 December 2019, Bondora, C‑453/18, EU:C:2019:1118, paragraph 40).
138 Accordingly given the nature and significance of the public interest constituted by the protection of consumers, Directive 93/13 obliges the Member States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. To do this, it is for the national courts to exclude the application of the unfair terms so that they do not produce binding effects with regard to the consumer concerned, unless the consumer objects (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 56 and the case-law cited).
139 A contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer concerned. Therefore, the determination by a court that such a term is unfair must, in principle, have the consequence of restoring the consumer to the legal and factual situation in which that person would have been in if that term had not existed (judgments of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 61, and of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 57).
140 In that context, the Court of Justice has stated that the obligation for the national court to exclude an unfair contract term imposing the payment of amounts that prove not to be due entails, in principle, a corresponding restitutory effect in respect of those amounts, in so far as the absence of such restitutory effect would be liable to call into question the dissuasive effect that Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) thereof, is designed to attach to a finding of unfairness in respect of terms in contracts concluded between consumers and sellers or suppliers (judgment of 15 June 2023, Bank M. (Consequences of the annulment of the contract), C‑520/21, EU:C:2023:478, paragraph 58 and the case-law cited).
141 However, notwithstanding those findings of principle, the Court has also acknowledged that consumer protection is not absolute (see, to that effect, judgment of 21 December 2016, Gutiérrez Naranjo and Others, C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraph 68).
142 In addition, although the Court has conceded that there is a clear public interest in ensuring, throughout the European Union, a strong and consistent protection of investors and creditors, that interest cannot be held to prevail in all circumstances over the public interest in ensuring the stability of the banking system (see, to that effect, judgments of 8 November 2016, Dowling and Others, C‑41/15, EU:C:2016:836, paragraph 54, and of 5 May 2022, Banco Santander (Resolution of Banco Popular), C‑410/20, EU:C:2022:351, paragraph 36).
143 As noted in paragraph 120 of the present judgment, the adoption of reorganisation measures and the recognition of their effects in the host Member State, as laid down in Directive 2001/24, meet objectives of general interest pursued by the European Union, namely that of ensuring the stability of the banking system, and that of preventing a systemic risk.
144 In the present case, the recognition of the effects of the reorganisation measures in the host Member State, as it is laid down in Directive 2001/24, means that the liability and risks associated with the overcharging of interest for the period of the mortgage loan contract prior to the adoption of the August 2014 decision must be retained in the assets and liabilities of BES. At the same time, the protection of consumers against the use of unfair terms in contracts concluded with a seller or supplier, as established in Article 6(1) of Directive 93/13, cannot go so far as to ignore the allocation of financial liabilities between a failing credit institution and a bridge bank, as such allocation has been determined in the reorganisation measures adopted by the home Member State.
145 If the protection afforded by Directive 93/13 were required to authorise each consumer in the host Member State who is a creditor of the failing credit institution to frustrate recognition of the measures by which the allocation of financial liabilities between that institution and the bridge bank has been decided by the home Member State, the intervention by the public authorities of the home Member State, which is aimed at ensuring protection of the stability of the banking system, could be rendered ineffective in all the Member States in which the failing credit institution has branches.
146 In that regard, it is also necessary to state that, in the light of, first, the objective pursued by those measures and by the recognition of their effects in the other Member States, consisting in preventing a situation in which, given the highly integrated nature of the banking markets in the European Union, the failure of one credit institution may have the knock-on effect of causing systemic damage affecting the stability of those markets and the stability of the EU internal market more generally and, second, the existence, in the present case, of reorganisation measures adopted by the competent Portuguese authority in respect of BES, the present cases clearly differ from the case that gave rise to the judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980).
147 Having regard to all the foregoing, the answer to the third questions in Cases C‑498/22 and C‑499/22 and to the second question in Case C‑500/22 is that Article 6(1) of Directive 93/13, read in the light of Article 38 of the Charter, Article 17 of the Charter and of the principle of legal certainty must be interpreted as not precluding, in principle, the recognition, in the host Member State, of the effects of reorganisation measures adopted in the home Member State under Directive 2001/24, which provide for the setting up of a bridge bank and the retention in the liabilities of the bank subject to those measures of the obligation to pay sums payable in connection with pre-contractual or contractual liability.
148 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.