Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 23 December 2022 — FSC v Banco Santander, S.A.

(Case C-794/22, Banco Santander)

(2023/C 173/18)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Appellant: FSC

Respondent: Banco Santander, S.A.

Question referred

Must Article 34(1)(a) and (b), read together with Article 53(1) and (3) as well as Article 60(2), first subparagraph, points (b) and (c), of Directive 2014/59/EU (1) be interpreted as meaning that the possible claim or right that arises from a judgment ordering payment of compensation given against the successor entity to Banco Popular Español, S.A. following an action for damages arising from the marketing of a financial product (subordinated bonds necessarily convertible into shares in the same bank) not included among the additional capital instruments to which the resolution measures for Banco Popular refer, which were ultimately converted into ordinary shares in the bank before the bank resolution measures were adopted (7 June 2017), could be considered a liability affected by the write-down or cancellation provision of Article 53(3) of Directive 2014/59/EU, as an ‘unaccrued’ obligation or claim, such that it would be discharged and would not be enforceable against Banco Santander, as the successor entity to Banco Popular, where the claim from which that judgment ordering payment of compensation arises was brought after the procedure for the resolution of the bank had been concluded?

Or, conversely, must those provisions be interpreted as meaning that the abovementioned claim or right constitutes an ‘accrued’ obligation or claim — Article 53(3) of the Directive — or ‘liability already accrued’ at the time of the resolution of the bank — Article 60(2)(b) — and, as such, excluded from the effects of the discharge or settlement of those obligations or claims, and, consequently, [that the abovementioned claim or right] is enforceable against Banco Santander, as the successor to Banco Popular, even where the claim from which that judgment ordering payment of compensation arises was brought after the procedure for the resolution of the bank had been concluded?

(1)  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).