Opinion of the Advocate General — ECLI:EU:C:2022:742
Date: 2022-09-29
Language of the case: German
Subject matter: Right of establishment;Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-555/21 – 1 
Case C-555/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
9 September 2021 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
19 August 2021 
Applicant (respondent in the appeal on a point of law before the OGH): 
Verein für Konsumenteninformation 
Defendant (appellant in the appeal on a point of law before the OGH): 
UniCredit Bank Austria AG 
  
Subject matter of the main proceedings 
Credit agreements for consumers relating to residential immovable property – 
early repayment of the amount of credit – proportional reduction of the sum of 
interest to be paid by the borrower and costs that are dependent on the duration of 
the agreement, but not costs that are not dependent on the duration of the 
agreement 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
Is Article 25(1) of Directive 2014/17/EU of the European Parliament and of the 
Council of 4 February 2014 on credit agreements for consumers relating to 
residential immovable property and amending Directives 2008/48/EC and 
2013/36/EU and Regulation (EU) No 1093/2010 to be interpreted as precluding 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-555/21 
 
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national legislation that provides for the sum of interest to be paid by the borrower 
and the costs that are dependent on the duration of the agreement to be 
proportionally reduced in the event that the borrower exercises the right to repay 
the amount of credit, either fully or partially, prior to the expiry of the agreed 
term, with no corresponding rule for costs that are not dependent on the duration 
of the agreement? 
Provisions of European Union law relied on 
Articles 4 and 25(1) of Directive 2014/17/EU 
Articles 3 and 16(1) of Directive 2008/48/EC of the European Parliament and of 
the Council of 23 April 2008 on credit agreements for consumers and repealing 
Council Directive 87/102/EEC 
Provisions of national law relied on 
Hypothekar- und Immobilienkreditgesetz (Law on mortgage and immovable 
property loans; ‘the HIKrG’) (in the version applicable until 31 December 2020): 
Paragraph 20 – Early repayment 
(1) The borrower has the right to choose at any time to repay the amount of 
credit, either fully or partially, prior to the expiry of the agreed term. The early 
repayment of the entire amount of credit, plus interest, constitutes termination of 
the credit agreement. In the event of early repayment of the amount of credit, the 
sum of interest to be paid by the borrower decreases proportional to the reduced 
receivable and, where appropriate, proportional to the reduced term of the 
agreement; costs that are dependent on the duration of the agreement decrease 
proportionally. 
Verbraucherkreditgesetz (Law on consumer credit; ‘the VKrG’), Paragraph 16(1) 
Konsumentenschutzgesetz (Law on consumer protection; ‘the KSchH’), 
Paragraphs 28 and 29 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is an association for enforcing consumer interests. The defendant is 
a credit institution that uses standard forms when concluding mortgage-secured 
loan agreements with consumers, which forms set out under the heading ‘early 
repayment’ the borrower’s right to repay the loan early and to have the interest to 
be paid and the costs that are dependent on the duration of the agreement reduced, 
but also contain the following clause: ‘It is clarified that the processing costs that 
are not dependent on the duration of the agreement will not be reimbursed, not 
even on a pro-rata basis.’ 
UNICREDIT BANK AUSTRIA 
 
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2 The association brought an action before the Handelsgericht Wien (Commercial 
Court, Vienna) against the credit institution requesting that they cease and desist 
from using this clause and that the judgment be published. The court of first 
instance dismissed the forms of order sought and upheld the defendant’s request to 
have the judgment dismissing the action published. However, the 
Oberlandesgericht Wien (Higher Regional Court, Vienna) upheld the appeal filed 
by the applicant association and allowed the action in its entirety. The Oberste 
Gerichtshof (Supreme Court) is now called upon to rule on the defendant’s appeal 
on a point of law brought against the decision on the appeal on the merits, by 
which it seeks to have the action dismissed. 
The essential arguments of the parties in the main proceedings 
3 The applicant claims that the clause contradicts Article 25(1) of the Mortgage 
Credit Directive 2014/17/EU (MCD), according to which, in the event of early 
repayment, the consumer is entitled to a reduction in the total cost of the credit, 
such reduction consisting of the interest and the costs for the remaining duration 
of the agreement. As regards the broadly identical provision of Article 16(1) of 
Directive 2008/48/EC (CCD), the European Court of Justice, in its judgment of 
11 September 2019, Lexitor, C-383/18, EU:C:2019:702, ruled that both costs that 
are dependent and those that are not dependent on the duration of the agreement 
should be reduced. This case-law is also to be applied to mortgage and immovable 
property loans. The provision of Paragraph 20(1) of the Austrian Law on 
mortgage and immovable property loans (HIKrG) enacted in implementation of 
the MCD is based on the provision of Paragraph 16(1) of the Austrian Law on 
consumer credit (VKrG) created in implementation of the CCD; both provisions 
similarly provide for a proportional reduction of the sum of interest to be paid by 
the borrower and the costs that are dependent on the duration of the agreement in 
the event of early repayment, whereas no mention is made of costs that are not 
dependent on the duration of the agreement. Both provisions are to be interpreted 
in conformity with the relevant directives, within the meaning of the 
aforementioned judgment of the European Court of Justice, as meaning that costs 
that are not dependent on the duration of the agreement are also to be reduced. 
4 The defendant argues that the aforementioned judgment was issued only in 
relation to the CCD and should not be applied to residential and immovable 
property loans. Even though the provisions of the directives and the laws 
implementing them are virtually identical, a distinction had to be made due to the 
particular features of mortgage agreements and in consideration of the fact that the 
directives define the total cost of the credit differently. Mortgage and immovable 
property loans incur significantly higher costs that are not dependent on the 
duration of the agreement. The clause is thus not affected by the Lexitor judgment. 
Even if one wished to view this differently, Paragraph 20(1) of the HIKrG would 
not, due to its clear wording and the unambiguous will of the legislature, be 
amenable to such an interpretation in conformity with the relevant directives, as 
there is no unintended oversight.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-555/21 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
5 There is no judicial remedy under national law against the decision of the 
Supreme Court (Article 267 TFEU). In accordance with the case-law of the Court 
of Justice, the national court dealing with such a matter must, in principle, assess 
both the need for a preliminary ruling and the relevance of the questions of EU 
law to be referred to the Court of Justice. The adjudicating Chamber does not 
share the view taken by the Court of Appeal that the interpretation of Article 25 of 
the MCD is clear enough for the principle of acte clair to apply. 
6 In paragraph 36 of the Lexitor judgment, the European Court of Justice states that 
Article 16(1) of the CCD must be interpreted as meaning that the right of the 
consumer to a reduction in the total cost of the credit in the event of early 
repayment includes all the costs imposed on the consumer. The objective of the 
directive is to guarantee a high level of consumer protection (paragraph 29). The 
inclusion of costs that are not dependent on the duration of the agreement in the 
reduction of the total cost is not unduly detrimental to the creditor, as 
Article 16(2) of the CCD provides for the creditor’s right to compensation for 
possible costs directly linked to early repayment of credit. The referring court 
takes the view that there are arguments both for and against an interpretation of 
Article 25(1) of the MCD according to the criteria of the Lexitor judgment: 
7 First, the fact that the second sentences of Article 16(1) of the CCD and 
Article 25(1) of the MCD have virtually identical wordings favours an 
interpretation within the meaning of the Lexitor judgment. The objective of the 
CCD, namely that of guaranteeing a high level of consumer protection, also 
applies in respect of the MCD.  
8 However, there are also solid arguments against such an interpretation: In 
accordance with Article 2(2)(a) and (b) of the CCD, which had already been 
adopted in 2008, this directive does not apply to credit agreements which are 
secured either by a mortgage or by another comparable security commonly used in 
a Member State on immovable property or secured by a right related to 
immovable property, nor credit agreements the purpose of which is to acquire or 
retain property rights in land or in an existing or projected building. The 
application of Article 16(1) of the CCD to cases involving early repayment of 
such immovable property loans has thus always been excluded. The MCD, which 
was first adopted in 2014, regulated for the first time certain aspects of the laws, 
regulations and administrative provisions of the Member States concerning 
agreements covering credit for consumers secured by a mortgage or otherwise 
relating to residential immovable property (Article 1 of the MCD). One of the 
particular features of mortgage and immovable property credit agreements is that 
this type of loan agreement is typically associated with a series of costs that are 
not dependent on the duration of the agreement and the amount of which are 
mostly beyond the control of the credit institution, which costs do not exist at all 
in the case of ‘simple’ consumer credit agreements subject to the CCD. Since, 
according to the definition given in Article 4(13) of the MCD, ‘Total cost of the 
UNICREDIT BANK AUSTRIA 
 
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credit to the consumer’ also includes the one-off costs for valuation, entering the 
mortgage in the land register or attestation of signatures that are typically incurred 
in relation to such agreements but do not ultimately accrue to the creditor, the 
referring court takes the view that an interpretation of Article 25(1) of the MCD to 
the effect that it was not intended to grant a right of reduction in relation to costs 
that are not dependent on the duration of the agreement in the area of immovable 
property loans cannot be ruled out. Such an interpretation would not be 
detrimental to interests of consumer protection, as imposing an obligation on the 
creditor to repay such costs that are not dependent on the duration of the 
agreement, within the meaning of Article 25(3) of the MCD, could result in 
compensation for possible costs directly linked to early repayment of credit. 
9 The decision to be made by the referring court hinges on the answer to the 
question put to the Court of Justice of the European Union. If the question is 
answered in the negative, the clause used by the defendant would then correspond 
to the legal situation applicable until 31 December 2020, meaning that its use 
could not in any case give rise to a cease-and-desist obligation on the part of the 
defendant. However, if it is answered in the affirmative, it would be for the 
Supreme Court to answer the question of whether and, if appropriate, how 
Paragraph 20(1) of the HIKrG (old version) can be interpreted in conformity with 
the relevant directives.