Opinion of the Advocate General — ECLI:EU:C:2019:975
Date: 2019-11-14
Language of the case: French

Summary of the subject matter of the dispute and the relevant facts  
Following acceptance of an offer of credit on 5 May 2013, ZT and YU entered 
into a debt consolidation credit agreement with COFIDIS, a public limited 
company, for the amount of EUR 20 600 at a fixed borrowing rate of 10.86% 
(APR 11.42%) repayable in 84 monthly instalments of EUR 351.23 each, 
excluding insurance. 
By registered letter with acknowledgement of receipt dated 29 March 2018, 
COFIDIS put the debtors on formal notice of their obligation to pay to it the sum 
of EUR 1 802.94, corresponding to the amount of unpaid instalments.  
Notice of default was issued by registered letter with acknowledgement of receipt 
dated 20 December 2017. 
By official documents, personally served by the court bailiff on 9 May 2018, 
COFIDIS brought an action against ZT and YU, respectively, before the Tribunal 
d’Instance d’Épinal, for hearing on 21 June 2018, so that, for the reasons set out 
therein and under the terms of a provisional enforcement, they would be declared 
jointly and severally liable to pay the amount of EUR 23 663.04, together with 
interest at the standard rate of 10.86% from 29 March 2018, and a further 
EUR 800 on the basis of Article 700 of the Code de procédure civile (Code of 
Civil Procedure).  
The case was dealt with at the hearing on 21 June 2018. 
COFIDIS, represented by a lawyer, sought to rely on its initiating application. It 
asked for time to produce a submission on the points raised by the Tribunal of its 
own motion during the hearing and to submit, as necessary, any appropriate 
documents in support of its arguments.  
ZT and YU appeared in person and requested time to make payment. 
REQUEST FOR A PRELIMINARY RULING OF 20. 9. 2018 — CASE C-616/18 
 
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In compliance with the adversarial principle, the Tribunal, of its own motion in 
the course of the proceedings, put forward the following points, on which it 
invited the parties to adopt a position:  
- possible breach of the obligation to provide an offer of contract containing a 
number of particulars, presented in a clear and legible manner and in sufficiently 
large text, as provided for by Articles L. 311-18 to L. 311-20 and R. 311-5 of the 
Code de la consommation (Consumer Code) (moved to Articles L. 312-28 to 
L. 312-30 and R. 312-10 of that Code), transposing Article 10 of the 
aforementioned Directive 2008/48/EC. 
- possible breach of the obligation to verify the creditworthiness of the 
borrowers, as provided for in Article L. 311-9 of the Consumer Code (moved to 
Article L. 312-16 of that Code), transposing Article 8 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, and in particular, 
failure to consult the national register recording significant failures to repay loans 
(‘FICP’) and failure to communicate the documents required to assess the 
creditworthiness of the borrowers, as well as the associated penalties (nullity, total 
or partial loss of the right to interest). 
At the conclusion of the hearing, the President of the Tribunal gave permission to 
COFIDIS to produce a written submission on the arguments raised by the Tribunal 
of its own motion during the hearing.  
In a written submission received on 25 June 2018, COFIDIS contended, in the 
main, that the arguments raised by the Tribunal of its own motion were time-
barred because they had been raised by the Tribunal more than five years after the 
conclusion of the agreement, as provided for in Article 110-4 of the Code de 
commerce (Commercial Code).  
In the alternative, COFIDIS indicated that it did verify the creditworthiness of the 
debtors by consulting the FICP, by having an information sheet completed and by 
requesting documentary proof of creditworthiness. 
It further pointed out that the rules on minimum character size laid down in 
Article R. 311-5 of the Consumer Code, in the version applicable at the time when 
the agreement was concluded, could not give rise to forfeiture of the right to 
interest. In the extreme further alternative, it takes the view that the term ‘font size 
8’ referred to in that article is not defined.  
IV.- Content of the national provisions and of the relevant national case-law 
which may be applicable in this case  
The credit agreement which is the subject of the present dispute was concluded on 
5 May 2013. It is governed by the provisions of the Consumer Code in the version 
resulting from Law No 2010-737 of 1 July 2010 on the reform of consumer credit, 
COFIDIS 
 
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which transposed into French national law Directive 2008/48/EC of the European 
Parliament and of the Council of 23 April 2008 on credit agreements for 
consumers.  
It should be noted that the provisions hereinafter referred to are those in force on 
the date of conclusion of the agreement at issue, in accordance with the 
application ratione temporis of legal rules in contractual matters. 1 
1. — National provisions on the clarity of the offer 
Article L. 311-18 of the Consumer Code provides that ‘A credit agreement shall 
be in writing or other durable medium. It shall comprise a stand-alone document, 
free from any advertising or promotional material and the information sheet 
referred to in Article L. 311-6. There shall be an information box inserted at the 
top of the credit agreement which shall inform the borrower of the main features 
of the credit.  
A décret en Conseil d’État (Council of State Decree) shall establish the list of 
information to be included in the agreement and in the information box referred to 
in the first paragraph of this Article.’ 
The provisions on the information to be contained in the agreement were 
established by Decree No 2011-136 of 1 February 2011, codified in Article 
R. 311-5 of the Consumer Code, which provides, in paragraph I, that ‘The credit 
agreement provided for in Article L. 311-18 shall be drafted in characters of no 
less than font size 8. It shall include, in a clear and legible manner’, a number of 
key provisions, such as the identities and geographical addresses of the 
contracting parties, the type of credit, the total amount of the credit and the 
conditions for making the funds available, the duration of the credit agreement, 
the amount, number and frequency of the instalments to be paid by the borrower 
and the borrowing rate. 
According to the first paragraph of Article L. 311-48 of the Consumer Code, ‘A 
creditor who grants credit…without providing the borrower with an agreement 
which satisfies the conditions laid down in Articles L. 311-11, L. 311-12, 
L. 311-16, L. 311-18, L. 311-19, L. 311-29, the final paragraph of Article 
L. 311-17 and Articles L. 311-43 and L. 311-46, loses the right to interest’. 
2.- National provisions on verification of the creditworthiness of the consumer 
Pursuant to Article L. 311-9 of the Consumer Code, ‘Before concluding an 
agreement for the provision of credit, the creditor shall verify the creditworthiness 
of the borrower on the basis of sufficient information, including the information 
provided by the latter at the request of the creditor. The creditor shall consult the 
 
1 The provisions of the Consumer Code relating to credit agreements were moved and partially 
amended following the date of conclusion of the agreement. 
REQUEST FOR A PRELIMINARY RULING OF 20. 9. 2018 — CASE C-616/18 
 
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register referred to in Article L. 333-4, subject to the conditions provided for in 
the Decree referred to in Article L. 333-5, except in the case of a transaction 
referred to in point 1 of Article L. 511-6 of the Code monétaire et financier 
(Monetary and Financial Code).’ 
According to paragraph 2 of Article L. 311-48 of the Consumer Code, ‘If a 
creditor does not comply with the obligations set out in Articles L. 311-8 and 
L. 311-9, he shall lose the right to interest, either in full or in the proportion to be 
determined by the court …’. 
3.- National provisions on the five-year limitation period 
According to paragraph I of Article L. 110-4 of the Code de commerce 
(Commercial Code), ‘Obligations resulting from transactions between traders or 
between traders and non-traders shall be time-barred after a period of five years if 
they are not subject to special shorter limitation periods’. 
As well as this particular limitation period, Article 2224 of the Code Civil (the 
Civil Code) provides generally that ‘The limitation period for bringing personal 
actions or actions involving moveable property shall be five years from the date 
on which the holder of a right became aware, or should have become aware, of the 
facts entitling him to exercise that right.’ 
4.- Relevant national case-law on the limitation period applicable to the 
implementation of the penalties provided for in the event of failure to comply with 
the rules on clarity of the offer and verification of the consumer’s credit-
worthiness 
a. Position of the Cour de cassation (Court of Cassation) 
So far as the Tribunal is aware, the question whether the five-year limitation 
period may be pleaded against a court implementing, whether of its own motion or 
at the request of a party, the penalties provided for in the event of failure to 
comply with the rules on clarity of the offer and verification of the consumer’s 
credit-worthiness has not been resolved by the Cour de cassation. 
By contrast, in similar situations concerning credit in respect of real-property 
transactions, the Cour de cassation takes the view that prescription affects an 
action challenging the annual percentage rate which has been brought more than 
five years after the date of conclusion of the agreement, in the case where the 
specification of the loan offer and the details of the ancillary charges are 
sufficiently clear and a straightforward reading would make it possible to 
determine the error affecting the APR (Cass. Civ. 1, 14 April 2016, RG 
No 15-14760). 
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b. Position of the Cours d’appel (Courts of Appeal) of Nancy and Paris 
Several decisions touching on the matter in dispute have been delivered by various 
Cours d’appel, including that of Nancy (the area of jurisdiction of which covers 
the Tribunal d’instance d’Épinal) and of Paris. The decisions reproduced in part 
below are systematically in favour of application of the limitation period, both in 
regard to actions concerning forfeiture of the right to interest and in regard to 
instances of irregularity raised by a court of its own motion. 
[…] 
– Cour d’appel de Paris, section 4, chamber 9, 19 January 2017, RG 
No 15/21991 
‘The lower court found and ruled, of its own motion, that the penalty of forfeiture 
of the right to contractual interest would be imposed on the company BNP 
PERSONAL FINANCE on the basis of an irregularity affecting the prior offer 
against which BNP PARIBAS PERSONAL FINANCE pleads the five-year 
limitation period under [Article] L. 110-4 of the Code de commerce, as amended 
by Law 2008-561 of 17 June 2008 in respect of an obligation arising on the 
occasion of its transaction between a commercial company and non-commercial 
individuals. 
This request seeking to have the right of the creditor to interest declared time-
barred is not limited to presenting a defence essentially designed to secure partial 
rejection of the bank’s claim as defined in Article 71 of the Code de procédure 
civile (Code of Civil Procedure) as “any plea in law seeking to have the claim of 
the other party rejected as unfounded following an examination as to the 
substance” and turns out in reality to be a counterclaim. 
It is thus indeed subject to the five-year limitation period set out in Article 
L. 110-4 of the Code de commerce, which begins to run from acceptance of the 
offer, that is to say, from 24 September 2008, in regard to a request seeking 
confirmation that the offer is itself defective in that it does not contain a box 
making withdrawal possible. 
It follows that the matter was time-barred on the day on which the lower court 
raised, of its own motion, the prescription of the creditor’s right to interest, that is 
to say, at the hearing of 16 April 2015,and that the lower court was not entitled to 
do so. 
Consequently, the judgment will be set aside in that it declares the creditor’s right 
to interest to be time-barred and in regard to the amount of the negative finding 
declared.’ 
[…]  
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V- Explanation of the reasons which have prompted the Tribunal to entertain 
doubts as to the interpretation of certain provisions of EU law and the link 
between those provisions and the national legislation applicable to the dispute 
in the main proceedings  
It should be pointed out again that the duration of the credit agreements which are 
governed by the provisions of Directive 2008/48/EC of the European Parliament 
and of the Council of 23 April 2008 on credit agreements for consumers may be 
indefinite or exceed five years from the date of their conclusion.  
The application of the national provisions on limitation periods has the result of 
depriving the courts and consumers of the possibility of challenging the creditor 
on the basis of substantial irregularities affecting the credit agreement in the case 
where a five-year period has elapsed since its conclusion. 
Such a limitation period is liable to create a significant imbalance to the detriment 
of consumers, contrary to the objective of consumer protection pursued by the 
directive.  
It would also appear to run counter to the obligation imposed on Member States to 
take all necessary measures to ensure that the penalties which they lay down are 
implemented, as being effective, proportionate and dissuasive, in accordance with 
the provisions of Article 23 of the Directive.  
As far as the referring court is aware, the Court of Justice of the European Union 
has not yet ruled on the question referred. However, in a similar case (Case 
C-473/00 — COFIDIS SA v Jean-Louis FREDOUT) concerning the interpretation 
of Directive 93/13/E[E]C, the Fifth Chamber of the Court of Justice, in a 
judgment of 21 November 2002, ruled that ‘Council Directive 93/13/EEC of 
5 April 1993 on unfair terms in consumer contracts precludes a national provision 
which, in proceedings brought by a seller or supplier against a consumer on the 
basis of a contract concluded between them, prohibits the national court, on expiry 
of a limitation period, from finding, of its own motion or following a plea raised 
by the consumer, that a term of the contract is unfair.’ 
It appears that the same reasoning could be applied to the issue of the five-year 
limitation period prohibiting the Tribunal from finding that the agreement is 
incompatible with the national provisions transposing Directive 2008/48/EC. 
Furthermore, in a judgment of 4 October 2007 (Case C-429/05 — Max 
RAMPION, Marie-Jeanne RAMPION, née GODARD v FRANFINANCE SA, 
K PAR K SA), the First Chamber of the Court of Justice held that ‘Directive 
87/102, as amended by Directive 98/7’, which has since been repealed and 
replaced by Directive 2008/48/EC, had to ‘be interpreted as allowing national 
courts to apply of their own motion the provisions transposing Article 11(2) of 
Directive 87/102 into national law’. 
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Finally, in a more recent judgment of 21 April 2016 (Case C-377/14 — Ernst 
Georg RADLINGER, Helena RADLINGEROVA v FINWAY A.S.), the Third 
Chamber of the Court of Justice ruled that ‘Article 10(2) 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 must be 
interpreted as meaning that it requires a national court hearing a dispute 
concerning claims based on a credit agreement within the meaning of that 
directive to examine of its own motion whether the obligation to provide 
information laid down in that provision has been complied with and to establish 
the consequences under national law of an infringement of that obligation, 
provided that the penalties satisfy the requirements of Article 23 of that directive’.  
That interpretation is motivated (paragraphs 67 and 68 of the judgment) by the 
desire ‘to guarantee the protection intended by that directive, the imbalance which 
exists between the consumer and the seller or supplier may be corrected by the 
court hearing such disputes only by positive action unconnected with the actual 
parties to the contract. Examination by a national court, of its own motion, of 
compliance with the requirements which flow from Directive 2008/48 constitutes, 
moreover, a means both of achieving the result sought by Article 10(2) of that 
directive and of contributing to achieving the aims set out in recitals 31 and 43 
thereto (see by analogy, order of 16 November 2010 in Pohotovosť, C-76/10, 
EU:C:2010:685, paragraph 41 and the case-law cited).’ 
VI. - Question referred to the Court of Justice for a preliminary ruling 
Does the protection guaranteed to consumers by 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 preclude a national 
provision which, in an action brought by a seller or supplier against a consumer on 
the basis of a credit agreement which they have concluded, prohibits the national 
court, on expiry of a limitation period of five years from the conclusion of the 
agreement, from finding and penalising, of its own motion or following an 
objection raised by the consumer, a failure to comply with the provisions relating 
to the obligation laid down in Article 8 of the directive to verify the 
creditworthiness of the consumer, a failure to comply with those of Article 10 et 
seq. of the directive relating to the information which must be included in a clear 
and concise manner in credit agreements, and, more generally, a failure to comply 
with all of the consumer-protection provisions set out in that directive? 
[…]