Request for a preliminary ruling from the Audiencia Provincial de Almería (Spain) lodged on 23 February 2018 — Banco Mare Nostrum S.A. v Ignacio Jesús Berenguel Nieto, Carmen Sonia Salinas López

(Case C-147/18)

Language of the case: Spanish

Referring court

Audiencia Provincial de Almería

Parties to the main proceedings

Appellant: Banco Mare Nostrum S.A.

Respondents: Ignacio Jesús Berenguel Nieto, Carmen Sonia Salinas López

Questions referred

Does a declaration, obtained by judgment, that an unfair term is non-binding, within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, 1 preclude the application of all the effects acknowledged by the judgment [of the Court of Justice of the European Union of 21 December 2016, Gutiérrez Naranjo and Others, C-154/15, C-307/15 and C-308/15]?

Is the application of the restitutory effects of a term held to be unfair within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts affected, limited or precluded by the principle that the subject-matter of an action is defined by the parties, the principle that the parties determine the facts and evidence forming the basis for a decision, the principle of substantive res judicata, and the principle of the prohibition of reformatio in pejus?

Are the functions of a court of second instance limited by the fact that the judgment at first instance granted limited effect to a declaration of unfairness, and the judgment has not been appealed against by the consumer but only by the seller or supplier, who included the term, in order to dispute the unfairness of the term or any effects arising from the declaration that the term was unfair?

Do the functions of a court of second instance extend to the possibility of applying all the consequences provided for in Council Directive 93/13/EEC of 5 April 1993 and the case-law interpreting it, even where the consumer did not seek, in his initial claim in the application, all the effects deriving from a declaration that the term in question is unfair?

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1 OJ 1993 L 95, p 29.