CELEX: 61994CJ0192
Direct effect of unimplemented directive
Council Directive 87/102/EEC concerning consumer credit

By order of 30 June 1994, received at the Court on 4 July 1994, the Juzgado de Primera Instancia No 10 (Court of First Instance
No 10), Seville, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation
of Article 129a of the EC Treaty and Article 11 of Council Directive 87/102/EEC of 22 December 1986 for the approximation
of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48,
hereinafter
the directive).
The question was raised in proceedings brought by a finance company, El Corte Inglés (hereinafter
the finance company), against Mrs Blázquez Rivero after she suspended payments to the finance company.
Mrs Blázquez Rivero entered into a contract for holiday travel with the travel agency Viajes El Corte Inglés SA (hereinafter
the travel agency) which she financed in part by a loan obtained from the finance company.  The finance company had the exclusive right to
grant loans to the travel agency's customers under an agreement between the two companies.
Mrs Blázquez Rivero accused the travel agency of shortcomings in performing its obligations and made several complaints against
it.  When those complaints proved unsuccessful, she ceased to pay instalments on the loan, whereupon the finance company brought
proceedings in the Juzgado de Primera Instancia, Seville, for payment of the outstanding balance.
Before the national court, Mrs Blázquez Rivero entered the defence against the finance company that the travel contract had
not been performed, without drawing any distinction between the finance company and the travel agent in view of the close
bond between them.
The national court took the view that Article 11(2) of the directive enabled the consumer to bring an action against the finance
company.  Article 11(2) provides as follows: Where:
(a)
in order to buy goods or obtain services the consumer enters into a credit agreement with a person other than the supplier
of them;
and
(b)
the grantor of the credit and the supplier of the goods or services have a pre-existing agreement whereunder credit is made
available exclusively by that grantor of credit to customers of that supplier for the acquisition of goods or services from
that supplier;
and
(c)
the consumer referred to in subparagraph (a) obtains his credit pursuant to that pre-existing agreement;
and
(d)
the goods or services covered by the credit agreement are not supplied, or are supplied only in part, or are not in conformity
with the contract for supply of them; and
(e)
the consumer has pursued his remedies against the supplier but has failed to obtain the satisfaction to which he is entitled,
the consumer shall have the right to pursue remedies against the grantor of credit. Member States shall determine to what
extent and under what conditions these remedies shall be exercisable.
In the national court's view, it is irrelevant that the action was brought, as in this case by the finance company and not
by the consumer, since rights may be relied on in any event whether by way of action or by way of defence.
It found, however, that Article 11(2) of the directive had not been transposed into Spanish law even though the period prescribed
for implementation had run out at the material time and that the result intended by that provision could not be attained by
interpreting national law in conformity with the directive.  Indeed, Article 1257 of the Spanish Civil Code, under which
contracts shall have effects only between the parties which concluded them and their heirs, prevents the consumer from pleading the shortcomings of the travel agency as against the finance company.
Although it considered that Article 11(2) was sufficiently clear, precise and unconditional to be relied on before it, it
suspended the proceedings and asked the Court to give a preliminary ruling on the following question: Is Article 11 of Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative
provisions of the Member States concerning consumer credit, which has not been implemented in national law by the Spanish
State, directly applicable in a case where a consumer seeks to rely, against a claim by the grantor of credit, on the defects
in the service supplied by the supplier with whom the said grantor of credit has concluded an exclusive agreement for granting
credit to his customers?
Shortly after this question was referred, the Court gave judgment in Case C-91/92
Faccini Dori
[1994] ECR I-3325, in which it reaffirmed its case-law according to which directives do not have any horizontal direct effect.
The Court forwarded a copy of that judgment to the national court and asked it whether, in the light of that judgment, it
wished to maintain its question.
The national court considered that the judgment in
Faccini Dori
provided a clear answer to the question of the horizontal direct effect of unimplemented directives, but observed that, unlike
in the case of the dispute before it,
Faccini Dori
was concerned with facts antedating the entry into force of the Treaty on European Union.  That Treaty introduced a new consumer
protection provision, Article 129a.
Article 129a provides as follows:
1.
The Community shall contribute to the attainment of a high level of consumer protection through:
(a)
measures adopted pursuant to Article 100a in the context of the completion of the internal market;
(b)
specific action which supports and supplements the policy pursued by the Member States to protect the health, safety and economic
interests of consumers and to provide adequate information to consumers.
2.
The Council, acting in accordance with the procedure referred to in Article 189b and after consulting the Economic and Social
Committee, shall adopt the specific action referred to in paragraph 1(b).
3.
Action adopted pursuant to paragraph 2 shall not prevent any Member State from maintaining or introducing more stringent protective
measures.  Such measures must be compatible with this Treaty.  The Commission shall be notified of them.
The national court maintained its question on the ground that it wondered whether that rule establishing the principle of
a high degree of consumer protection might have any bearing on the direct effect as between individuals of Article 11 of the
directive.
By its question, the national court essentially seeks to establish whether, in the absence of measures implementing the directive
within the prescribed period, a consumer may, in view of Article 129a of the Treaty, base a right of action on the directive
itself against a lender who is a private person, on account of inadequacies in the supply of goods or provision of services
by the supplier or provider with whom the lender concluded an exclusive agreement with regard to the grant of credit and assert
that right before a national court.
Whether the provisions of the directive relating to the consumer's right of action may be relied on in proceedings between
the consumer and a lender
As the Court has consistently held (see, in particular, Case 152/84
Marshall I
[1986] ECR 723, paragraph 48), a directive may not of itself impose obligations on an individual and may therefore not be
relied upon as such against such a person.
As for the case-law on when directives may be relied upon against State entities, it is based on the binding nature of directives,
which applies only with regard to the Member States to which they are addressed, and seeks to prevent a State from taking
advantage of its own failure to comply with Community law (see
Marshall I
, paragraphs 48 and 49).
The effect of extending that case-law to the sphere of relations between individuals would be to recognize a power in the
Community to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is
empowered to adopt regulations or decisions (see
Faccini Dori
, paragraph 24).
Article 129a of the Treaty cannot alter that case-law, even if only in relation to directives on consumer protection.
Suffice it to say in this connection that the scope of Article 129a is limited.  On the one hand, it provides that the Community
is under a duty to contribute to the attainment of a high level of consumer protection.  On the other, it creates Community
competence with a view to specific action relating to consumer protection policy apart from measures taken in connection with
the internal market.
In so far as it merely assigns an objective to the Community and confers powers on it to that end without also laying down
any obligation on Member States or individuals, Article 129a cannot justify the possibility of clear, precise and unconditional
provisions of directives on consumer protection which have not been transposed into Community law within the prescribed period
being directly relied on as between individuals.
Consequently, a consumer cannot base on the directive itself a right of action against a lender who is a private person following
shortcomings in the supply of goods or the provision of services and assert that right before a national court.
Moreover, if the result prescribed by the directive cannot be achieved by way of interpretation, it should also be borne in
mind that, in terms of the judgment in Joined Cases C-6/90 and C-9/90
Francovich and Others
v
Italy
[1991] ECR I-5357, paragraph 39, Community law requires the Member States to make good damage caused to individuals through
failure to transpose a directive, provided that three conditions are fulfilled.  First, the purpose of the directive must
be to grant rights to individuals.  Second, it must be possible to identify the content of those rights on the basis of the
provisions of the directive.  Finally, there must be a causal link between the breach of the State's obligation and the damage
suffered (
Faccini Dori
, paragraph 27).
In the light of the foregoing, it should be stated in reply to the national court's question that, in the absence of measures
implementing the directive within the prescribed period, a consumer may not, even in view of Article 129a of the Treaty, base
a right of action on the directive itself against a lender who is a private person, on account of inadequacies in the supply
of goods or provision of services by the supplier or provider with whom the lender concluded an exclusive agreement with regard
to the grant of credit and assert that right before a national court.
Costs
The costs incurred by the Spanish and French Governments and the Commission of the European Communities, which have submitted
observations to the Court, are not recoverable.  Since these proceedings are, for the parties to the main action, a step in
the proceedings pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the question referred to it by the Juzgado de Primera Instancia No 10, Seville, by order of 30 June 1994, hereby
rules:
Kakouris
Hirsch
Kapteyn
Murray
Ragnemalm
Delivered in open court in Luxembourg on 7 March 1996.
R. Grass
C.N. Kakouris
Registrar
President of the Sixth Chamber
–
Language of the case: Spanish.