Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 1 June 2023 — Banco Santander SA v Asociación de Consumidores y Usuarios de Servicios Generales-Auge, on behalf of its members Andrea and Alberto

(Case C-346/23, Banco Santander)

(2023/C 329/11)

Language of the case: Spanish

Referring court

Tribunal Supremo

Parties to the main proceedings

Applicant: Banco Santander SA

Defendants: Asociación de Consumidores y Usuarios de Servicios Generales-Auge, on behalf of its members Andrea and Alberto

Question referred

Referred under Article 267 TFEU, and requesting the interpretation of Article 52(2)(b) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004  (1) on markets in financial instruments:

On the basis that consumer associations have standing to represent in legal proceedings investors/consumers claiming a breach of duty by an investment firm in the marketing of complex financial products, can that standing be restricted exceptionally by national courts, in the context of an individual claim, in cases involving high-worth investors who carry out transactions that cannot be regarded as being of ordinary and widespread use and who bring proceedings under the aegis of a consumer association with the result that they are able to benefit from a possible exemption from legal costs in very high-value court proceedings, avoiding the payment of court fees and avoiding paying the costs of the opposing party in the case of unfounded or even frivolous claims?

(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).