1. THE FACTS - WHY SPAIN IS LEADING CASE

Between 2008-2022, Spanish banks closed > 50% of branches - from 46,000 to 19,000. Villages like El Borge and Iznate in Málaga lost all ATMs. Mobile bank visits only Thursday 08:00-14:00.

• 78-year-old retired physician Carlos San Juan from Valencia launched Change.org petition in Dec 2021: "I am almost 80 years old and sad to see that many banks have forgotten elderly people like me. We do not deserve this exclusion, I am asking to be served by human beings."
• Petition got 647,950 signatures in 2 months.
• Forced Spanish Government + Bank of Spain + AEB (Spanish Banking Association) to sign Strategic Protocol for Financial Inclusion Feb 2022.

Protocol Measures (legally enforceable as good practice under Banco de España supervision):

• Dedicated trained staff for elderly
• Extended cashier hours 9:00-14:00
• Simplified ATMs, apps, websites
• Telephone appointment with human, no bot
• No full digital migration without alternative

Bank of Spain Governor Pablo Hernandez de Cos said protocol offers concrete answers and central bank will oversee implementation.

This is now cited as citizen mobilisation creating law under Miguel Reale's three-dimensional theory of law - Fact + Value + Norm.

2. LEGAL FRAMEWORK - HOW DIGITAL EXCLUSION = HUMAN RIGHTS VIOLATION

Spanish litigation uses 5 layers:

A. Spanish Constitution:

• Art 14 - Right to Equality & Non-discrimination: Age cannot be automatic exclusion criterion. Constitutional Court ruling 3/2018 declared right to equality violated in case of exclusion by age.
• Art 18.4 - Right to honor, intimacy and data protection: Limitation of IT use to guarantee rights.
• Art 51 - Consumer Protection: Public authorities must protect consumers, especially vulnerable.
• Art 9.2 - Public powers must promote real equality

B. EU Charter of Fundamental Rights:

• Art 21 - Non-discrimination: Age discrimination prohibited
• Art 25 - Rights of the Elderly: Union recognises right of elderly to lead life of dignity and independence
• Art 38 - Consumer Protection: High level of consumer protection
• Art 47 - Right to effective remedy

C. EU Directives Transposed in Spain:

• Payment Accounts Directive 2014/92/EU -> RD 164/2019: Right to basic payment account with cash access, non-discriminatory.
• PSD2 Directive: Right to access account via non-digital means
• European Accessibility Act 2019/882: Banking services must be accessible

D. Spanish Specific Laws:

• Law 39/2015 Common Administrative Procedure: Telematic channel must not exclude.
• AEPD (Spanish Data Protection Agency) Report 2022: "Digitalization without alternatives: risk of discriminating against elderly people" - AEPD said increase in phenomena of exclusion of elderly in multitude of services now offered in digital form violates right to non-discrimination and capacity to act. Digital divide undermines rights and can lead to marginalisation.

E. Right to Cash - Legal Tender:

CJEU Dietrich and Häring v Rundfunk C-422/19 and C-423/19 - 26 Jan 2021
German broadcaster refused cash. CJEU held legal tender status under Art 128(1) TFEU must be given autonomous uniform interpretation. Member States can limit cash acceptance only for reasons of public interest, proportionate, and must not de jure or de facto abolish banknotes.
Application to Spain: Government proposed phasing out cash, ECB said: "You can't do that" - Spain would breach EU Treaty establishing notes and coins as legal tender.

3. LITIGATION ROUTES IN SPAIN - CASE LAWS

Route 1: Banco de España Complaint + Protocol Enforcement

Most effective, no court needed. File complaint at Banco de España - Claim violation of 2022 Inclusion Protocol. Banco de España can sanction bank.

Example: Cajamar closing branches in El Borge/Iznate - After protest, forced to provide mobile bank. If not, complaint under Art 5 of Order ECE/228/2019 on customer service.

Route 2: Discrimination Claim - Consumer / Civil Court

Case Law: TSJ Catalonia + Constitutional Court Doctrine

Spanish courts have held age cannot be automatic exclusion criterion for specialized resources when needs require specific attention. Applied analogically to banking: If bank offers ONLY app-based account opening, elderly can claim age discrimination under Art 14 CE + Art 21 CFR + Law 15/2022 Integral Law for Equal Treatment.

No direct Supreme Court judgment yet on digital exclusion as discrimination, but doctrine from disability cases (Madrid condemned for discriminating woman with disability 2023) is extended.

Legal Argument:

• Bank's digital-only policy = indirect discrimination on ground of age (Art 6 Law 15/2022)
• Violates RD 164/2019 right to basic account with human assistance
• Request: Injunction to provide human service + damages for moral harm

Route 3: Bank Fraud Liability Shift - Human Rights of Vulnerable Consumer

This is where Spain leads EU.

Case 3: Spanish Supreme Court 2023-2024 - Banks Liable for Digital Fraud (Phishing, SIM Swapping)
Spanish Supreme Court determined banks are liable for unauthorized transactions resulting from digital fraud, such as phishing or SIM swapping, unless they can demonstrate gross negligence on part of customer.

This reversed old burden. Previously banks blamed customer for clicking link. Now burden on bank.

Case 4: CJEU Case C-70/25 - Bank Phishing: Immediate Refund - Judgment 2025 - MOST IMPORTANT FOR SPAIN
Facts: Customer phished, money stolen, reported immediately to bank and police next day. Bank refused refund arguing gross negligence by failing to protect credentials.
Koszalin District Court (Poland) referred preliminary question to CJEU.
CJEU answered: NO. Bank may NOT refuse immediate refund because customer enabled transaction through gross negligence.

• Reimbursement mandatory no later than end of next business day after notification of fraud.
• Bank retains right of recourse: If bank can prove client intentionally or grossly negligently breached obligations (disclosing access codes), bank may seek reimbursement for losses later.
• Burden of proof lies with bank and user protection must prevail when unauthorized payment.

Applied in Spain: Audiencia Provincial courts now order immediate refund under PSD2 Art 62 transposed in Spanish Payment Services Law RD 19/2018.

Effect for elderly: Elderly victims of phishing who are digitally excluded cannot be held grossly negligent for lacking digital skills. CJEU says even gross negligence does not allow bank to withhold immediate refund.

Route 4: Right to Cash Litigation

Case 5: Shops of Malta + Cash Essentials - CJEU on Right to Pay in Cash
CJEU held public interest may justify limiting cash, but must be proportionate. In rural Spain where no ATM within 20km, bank closure forcing digital-only violates right to cash as legal tender + right to inclusion under EU.

Spanish litigators use this to challenge municipality / bank agreements closing last ATM.

Route 5: European Parliament Recognition

Case 6: European Parliament Awards Carlos San Juan - Soy Mayor No Idiota - 2022 European Citizen's Prize
European Parliament awarded Carlos San Juan under Article 10 of Charter. Citation: Customer Service in Bank Branches - #SOY MAYOR, NO IDIOTA. Recognized as defense of fundamental rights of elderly under EU Charter.

This award is used as soft law in Spanish courts to show EU values support human banking.

4. HOW TO FILE DIGITAL EXCLUSION CASE IN SPAIN - PRACTICAL TEMPLATE

Step 1: Document exclusion: Photos of closed branch, ATM out of service, app only with no human alternative, call center bot.

Step 2: File Hoja de Reclamación (Official Complaint) at bank branch + Request Libro de Reclamaciones.

Step 3: File at Banco de España - Servicio de Reclamaciones + At same time file at Defensor del Pueblo (Ombudsman) citing Art 14 + Art 25 CFR + Protocol 2022.

Step 4: If damage (e.g., missed pension, fraud due to forced digital), file at Juzgado de Primera Instancia - Civil claim for discrimination under Law 15/2022 + Consumer Law RD 1/2007.

Claim wording:

"La entidad ha vulnerado el Protocolo Estratégico de Inclusión Financiera Feb 2022 y el RD 164/2019 derecho a cuenta básica con atención humana, incurriendo en discriminación indirecta por edad prohibida por Art 14 CE, Art 21 CDFUE, Art 25 CDFUE, y Ley 15/2022. Solicita medida cautelar de restablecimiento de atención presencial y indemnización por daño moral conforme doctrina AEPD sobre exclusión digital."

Courts in Madrid, Barcelona, Valencia have accepted mediation leading to banks reopening cashier hours.