The Second Chance Law reaches the CJEU: a commercial court and the Alicante Provincial Court question the Supreme Court's doctrine

The standoff between part of the Spanish judiciary and the Supreme Court's doctrine on the Second Chance Law has escalated to Luxembourg. A commercial court in Alicante and the Alicante Provincial Court have raised to the Court of Justice of the European Union a battery of preliminary references, dated 27 and 28 October, questioning the core of the High Court's interpretation of the discharge of unsatisfied liabilities, El Confidencial reports after consulting the orders.

The contested doctrine comes from a series of Civil Chamber judgments that have raised intense controversy in the legal profession: the requirement that all claims the debtor seeks to discharge have been previously communicated to the court. Under that reading, claims not included in the list of creditors and in the judicial resolution are not discharged.

The orders consulted by the newspaper are dated 27 and 28 October, which places the referrals within barely 24 hours of each other. The near-simultaneity of the two resolutions reflects that this is not an isolated disagreement, but a position shared by judges specialised in the matter who had been applying, in their rulings, interpretations contrary to the High Court's.

The questions travelling to Luxembourg

According to the press report, the Alicante courts want European justice to clarify, among other questions, whether all claims are dischargeable even if not communicated, and whether the Supreme Court can create exceptions to discharge not provided for by the legislator. They also ask the CJEU to rule on whether omitting a claim by mistake or for lack of information amounts to bad faith on the debtor's part.

The references incorporate a system-design argument that sums up the tension well: under the current doctrine, creditors who do not cooperate come out ahead. If a creditor does not supply all the data on their claim and the debtor cannot identify it correctly, that claim is not discharged and can keep being claimed. The commercial court's order formulates it in incentive terms: while the insolvency system punishes whoever fails to properly communicate their claim, the discharge system, under this interpretation, rewards them.

The underlying debate

The Supreme Court has defended its interpretation as a condition of legal certainty: precisely identifying all discharged claims prevents the resolution from becoming a blank cheque for debtors and delimits the liberating scope of the procedure. Critics reply that a discharge conditioned on exhaustive identification can denaturalise the Discharge of Unsatisfied Liabilities (EPI) if it leaves out claims the law does not exclude, in tension with the principle of full discharge that inspires the European rules on personal insolvency.

The debate is not new. As this newspaper reported months ago, some of these dissenting judges had been defending their position with the same arguments now raised in the preliminary references, insisting that the Supreme Court's doctrine includes an exception to discharge - that of communicating all claims - not recognised by the legislator and contrary to EU law. The academic and professional controversy has been installed in the insolvency specialty forums for months, fed by the battery of Civil Chamber judgments that set the doctrine. The novelty is the channel: the preliminary reference moves the conflict to the ultimate interpreter of Union law, whose answer will bind all Spanish courts and determine whether the Supreme Court's doctrine is correct or must be amended.

What the contested doctrine requires in practice

The operational key of the challenged case law is the obligation to communicate to the court in advance all claims sought to be discharged. In the Supreme Court's reading, the precise identification of each claim is a condition of legal certainty: the discharge resolution cannot operate as a blank cheque, but must delimit exactly which obligations are extinguished. That is why claims absent from the list of creditors - and therefore from the judge's resolution - do not benefit from the discharge and survive the procedure.

The Alicante courts consider that this requirement incorporates an exception to discharge that the legislator did not include and that is contrary to EU law, because it allows a legally dischargeable claim to be left out over a purely formal or informational defect. And they underline the incentive paradox it generates: a creditor who does not cooperate or supply the data on their claim ends up in a better position than the one who appears diligently, since if the debtor fails to identify them correctly, their claim is not discharged and can be claimed later.

Immediate practical repercussion

While the CJEU rules - a process that habitually runs for many months - firms handling Second Chance files face concrete tactical decisions. The first is documentary: the exhaustive enumeration of claims and creditors, with complete identification and verified notification addresses, becomes the most delicate part of the application. The second is strategic: whether to raise a preliminary reference in ongoing proceedings, following the channel opened by the Alicante courts, or to request a stay of proceedings until the European answer, a petition whose success will depend on each judicial body.

For debtors, the operational message is one of caution: under the Supreme Court's current doctrine, an omitted claim - even by mistake or for lack of information from the creditor itself - can survive the discharge and be claimed later, precisely the scenario the preliminary references seek to correct.

The matter also has a market derivative. Firms specialised in Second Chance and insolvency practices, such as those reinforcing their teams to handle the growing volume of files - see the recent move by Bergada Abogados in its insolvency area - work on regulatory ground whose definitive interpretation is now pending in Luxembourg.

A judicial front with several actors

The conflict reaches the CJEU at a moment of case-law turbulence in the Civil Chamber, the same week its warning against mass litigation in defaulter files becomes known and days after the admission of the cassation appeal over the refund of Madrid's waste charge, another matter of major collective economic impact. The European court's answer to the Alicante questions will define whether the Spanish interpretation of the EPI stands or must be corrected, with direct effects on thousands of ongoing files.

The orders consulted by the newspaper that broke the story are dated 27 and 28 October, so in less than 24 hours a commercial court and the Alicante Provincial Court placed the substance of the debate in the CJEU's hands. That both resolutions come from the same province does not detract from the generality of the matter: the contested doctrine is applied in all Spanish courts handling personal insolvency proceedings, and Luxembourg's answer will have effects on every one of them.

Frequently asked questions

Who has raised the preliminary references on the Second Chance Law?

A commercial court in Alicante and the Alicante Provincial Court, through orders of 27 and 28 October 2026, according to the report published by El Confidencial.

Which Supreme Court doctrine is being questioned?

The requirement that all claims sought to be discharged have been previously communicated to the court, so that those not included in the list of creditors and in the judicial resolution are not discharged.

What questions are raised to the CJEU?

Whether uncommunicated claims are dischargeable, whether the Supreme Court can create exceptions to discharge not provided for by the legislator and whether omitting a claim by mistake or lack of information amounts to bad faith, according to the press transcription of the orders.

What happens with ongoing proceedings?

They continue under the current doctrine. Firms may consider raising new preliminary references or requesting stays, decisions that belong to each judicial body.

When will the CJEU rule?

There is no fixed deadline. Preliminary reference proceedings usually run for months; until then the Supreme Court's doctrine remains the applicable reference.

Sources

• El Confidencial, "El pulso de los jueces a la doctrina del Supremo sobre la Segunda Oportunidad llega a Europa", 10 November 2026 (consulted on 10 November 2026).

Story based on the press report transcribing the content of the orders of 27 and 28 October; the full text of the resolutions has not been consulted directly.