Opinion of the Advocate General — ECLI:EU:C:2021:564
Date: 2021-07-08
Language of the case: French
Subject matter: Right of establishment;Free movement of capital;Internal market - Principles
Procedure: Reference for a preliminary ruling
Origin: France

summary of the first ground of appeal, based 
on consumer law, with no bearing on the questions referred] 
SECOND GROUND OF APPEAL IN CASSATION (alternative) 
The confirmatory judgment under appeal is contested on the ground that it upheld 
the decision of the lower court to reject, as being inadmissible, the challenges 
brought by LR against the sums transferred from the bank account held by Groupe 
Central Automobiles to various companies on the grounds that those challenges 
were time-barred and on the ground that it ordered payment by LR of the sum of 
EUR 96 019.36 plus interest accrued after 26 March 2012 at the contractually 
imposed rate, in accordance with the joint and several guarantee covering 
operations of the […] current account opened in the name of Groupe Central 
Automobiles; 
[Grounds of the judgment under appeal] LR argues that the bank breached its 
duties by making transfers to third parties without authorisation and contends that 
the amount of those direct debits must be deducted from its claim; against this, 
Crédit Agricole contends that this objection is a strictly personal right pertaining 
to the principal debtor that the guarantor is not entitled [Or. 9] to raise, and that 
the amount of the debt owed to it was definitively established by judgment of the 
Tribunal de Commerce, Toulon, of 23 October 2012, and that, in any event, GCA 
Sàrl consented to these direct debits; the court of first instance rightly held that a 
guarantor is entitled to raise any objections inherent in the debt itself against the 
creditor, but not those personal to the debtor; in accordance with Article L.133-24 
of the French monetary and financial code, GCA Sàrl had a 13-month period 
within which to contest the disputed transactions; if this period may have been 
interrupted by an exchange of correspondence on 3 March 2011 in which the 
manageress of GCA Sàrl requested information on those transactions, a new 13-
month period started on that date; however, since the disputed transfers were not 
contested until the submissions notified on 15 May 2013, the objection was time-
barred; 
LR further maintains, in the alternative, that sums are owed to GCA, the principal 
debtor, since direct debits were made from its account without its authorisation; 
REQUEST FOR A PRELIMINARY RULING OF 16. 7. 2020 — CASE C-337/20 
 
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until 2011, FW was entrusted with verifying the accounting records; Crédit 
Agricole breached its contractual duties by making transfers without any signed 
order or authorisation; LR instructed the bank to submit all of the accounts and 
calculate the [bank] account balance […] taking account of the reversed direct 
debits; LR calculates that these direct debits total EUR 94 123.26; the bank 
contends that this objection is a personal right pertaining to the principal debtor 
and cannot be raised by the guarantor as a valid plea; this argument is irrelevant: 
LR gave the security to allow the bank account to operate in overdraft; 
consequently, this objection is not a personal right pertaining to GCA Sàrl, but 
one which directly pertains to the guarantor; however, the bank Crédit Agricole 
rightly comments that the principal debtor did not dispute the amount of the sums 
owed to the bank before the Tribunal de Commerce, Toulon, which ordered it to 
pay the overdraft amounts being challenged by LR […]; furthermore, although LR 
relies on the application of provisions of the Civil Code to support its plea, bank 
account operations are governed by provisions of the French monetary and 
financial Code, and more specifically Article L.133-25 and Article L.133-6-1; the 
aforementioned code does not require any written authorisation to be given before 
direct debits can be taken from the account; these direct debits appear on bank 
statements and have been made to the companies ETRA FI, FLEX CALL, RF 
SOLUTION and AZUR CONSEIL since 2008; Crédit Agricole produced the 
cheques drawn up by DM, manageress of the company GCA, and made out to the 
company RF SOLUTION for the same amounts as the direct debits being disputed 
by LR; after the last cheque was issued on 1 April 2009, direct debits were 
executed for the same amount and at the [Or. 10] same monthly frequency; DM 
began to consult the bank via email in March 2011; a professional would not have 
let these direct debits continue without posing any questions; in any event, the 
company was required to dispute the transactions within the 13-month period 
provided for in Article L.133-25 of the French monetary and financial Code; the 
challenges being raised by LR are inadmissible because they are time-barred; 
Furthermore, Crédit Agricole was not provided with GCA’s balance sheets, which 
could have made it possible to check whether payments made to the companies 
that were alleged to have belonged to their accountant were intended to cover 
staffing costs, which would have been deducted from the company’s expenses, 
thereby reducing its turnover by the same amount, doubts that are corroborated by 
the fact that, although those direct debits were made to companies belonging to 
the accountant FW, he was not taken to court for having received those sums 
unduly; In view of these facts, it is recognised that the company GCA consented 
to the direct debits being challenged by LR, and as such his request for set-off is 
refused and the guarantee remains; LR is therefore ordered to pay to the Caisse 
Régionale Agricole Mutuel Alpes-Provence the sum of EUR 96 019.36 plus 
interest accrued after 26 March 2012 at the contractually imposed rate, in 
accordance with the joint and several guarantee covering operations of the […] 
current account held by Groupe Central Automobiles Sàrl; 
1. [Grounds of the appeal in cassation] Article L.133-18 of the French 
monetary and financial Code, which offers entitlement to an immediate refund of 
unauthorised payment transactions reported by the user to the bank, does not 
CRCAM 
 
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prevent the bank from being held contractually liable under ordinary law in the 
event of a breach of its duty to exercise due care if proof is provided of any 
resulting loss; in order to reject the challenges brought by LR against the sums 
transferred from the bank account held by Groupe Central Automobiles to various 
companies on the grounds that those challenges were time-barred, the lower court 
ruled that ‘although LR relies on the application of provisions of the Civil Code to 
support his plea, bank account operations are governed by provisions of the 
French monetary and financial Code’ when, notwithstanding Article L.133-18 of 
the French monetary and financial Code on non-authorised payment transactions, 
LR could invoke the bank’s contractual liability, the appellate court breached 
Article 1147 of the Civil Code, applicable to the case before it became 1231-1 
thereof, and Article 1937 of the Civil Code; 
[…] [Or. 11] […] [summary of the second and third parts of the second ground of 
appeal, based on the breach of procedural rules, of no relevance to the questions 
referred]