Judgment;Summary — ECLI:EU:C:2020:242
Date: 2020-03-26
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-66/19 — 1 
Case C-66/19 
Request for a preliminary ruling 
Date lodged: 
29 January 2019 
Referring court: 
Landgericht Saarbrücken (Germany) 
Date of the decision to refer: 
17 January 2019 
Applicant: 
JC 
Defendant: 
Kreissparkasse Saarlouis 
  
[...]      Saarbrücken, 17.01.2019 
[...] 
LANDGERICHT SAARBRÜCKEN 
(Regional Court, Saarbrücken) 
[...] 
ORDER 
In the case of 
JC, [...], 
Applicant 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 1. 2019 — CASE C-66/19 
 
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[...] 
v 
Kreissparkasse Saarlouis, [...] Saarlouis, 
Defendant 
[...] 
[Or. 2] 
1. The proceedings are stayed. 
2. The following questions concerning the interpretation of EU law are 
referred to the Court of Justice of the European Union (‘CJEU’) 
pursuant to Article 267 TFEU: 
a. Is Article 10(2)(p) 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 to be interpreted as meaning that the required 
information in relation to the ‘period during which the right of 
withdrawal may be exercised’ or ‘other conditions governing the 
exercise thereof’ must also include the requirements governing the 
start of the withdrawal period? 
b. If the answer to Question (a) is in the affirmative: 
Does Article 10(2)(p) 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 preclude an interpretation to the effect that 
withdrawal information is ‘clear’ and ‘concise’ if it does not itself 
cite in full the mandatory information to be provided with regard 
to the start of the withdrawal period, but in this respect refers to a 
provision of national law — in the present case, Paragraph 492(2) 
of the Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’) 
in the version valid up to 12 June 2014 — which in turn refers to 
further national provisions — in the present case, Article 247, 
Paragraphs 3 to 13, of the Einführungsgesetz zum Bürgerlichen 
Gesetzbuche (Introductory Law to the Civil Code; ‘the EGBGB’) 
in the version valid up to 12 June 2014 — and the consumer is 
therefore obliged to read numerous legislative provisions in a 
variety of legislative texts so as to gain clarity as to what 
mandatory information must be provided in order for the 
KREISSPARKASSE SAARLOUIS 
 
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withdrawal period to start to run in the case of his loan 
agreement? 
c. If Question (b) is answered in the negative (and there are no 
concerns in principle against a reference to provisions of national 
law): 
Does Article 10(2)(p) 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 preclude an interpretation to the effect that 
withdrawal information is ‘clear’ and ‘concise’ if the reference to a 
provision of national law — in the present case, Paragraph 492(2) 
of the BGB in the version valid from 30 July 2010 up to 12 June 
2014 — and the further reference — in the present case, to 
Article 247, Paragraphs 3 to 13, of the EGBGB in the version valid 
from 4 August 2011 up to 12 June 2014 [Or. 3] — necessarily 
means that the consumer has to carry out a process of legal 
inference beyond simply reading the provisions — for instance, as 
to whether the loan was granted to him under conditions 
customary for contracts secured by mortgage and the interim 
financing thereof or whether linked agreements exist, so that he 
can gain clarity as to what mandatory information must be 
provided in order for the period of withdrawal to start to run in 
the case of his loan agreement? 
Grounds: 
(1) I. The parties are in dispute as to the validity of a withdrawal declared 
by the applicant from his contractual declaration in relation to a loan 
agreement. 
(2) In 2012 [...] the applicant, whose status as a consumer is not in dispute, 
entered into a loan agreement secured by mortgage for EUR 100 000 with 
the defendant, with a borrowing rate of 3.61% per annum fixed until 
30 November 2021 [...]. 
(3) Under Clause 14 of the agreement, the defendant gave the applicant (in 
extracts) the following information in relation to the latter’s right of 
withdrawal: 
14. Information concerning withdrawal 
Right of withdrawal 
The borrower may withdraw his contractual declaration, without giving 
reasons, within 14 days in writing (for example, letter, fax, email). The 
period begins after conclusion of the agreement, but only once the borrower 
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has received all mandatory information in accordance with Paragraph 492(2) 
of the BGB (for example, information concerning the type of loan, 
information relating to the net loan amount, information concerning the 
contractual term). [...] 
(4) By letter of 30 January 2016 [...] the applicant declared the withdrawal of his 
contractual declaration in relation to the loan agreement. 
(5) The applicant is taking action against the defendant on the ground of having 
effectively withdrawn from the loan agreement, seeking a finding that the 
defendant, on the basis of a contractual obligation for restitution in relation 
to the loan agreement as at 30 April 2018, was entitled to a claim of no more 
than EUR 66 537.57, and that the defendant finds itself, with the acceptance 
of the payment, in default of acceptance and is required to compensate the 
applicant for all damage arising from [Or. 4] the refusal to reverse the 
transaction. In the alternative, the applicant requests a finding that the 
defendant was no longer entitled to the contractual interest and the 
contractual repayment arising from the loan agreement as from the time of 
receipt of the declaration of withdrawal. 
(6) The defendant requests that the action be dismissed on the ground that it had 
properly informed the applicant of his right of withdrawal and that the 
period for withdrawal had already expired at the time of the declaration of 
withdrawal. 
(7) II. The decisive factor for the decision is whether the information 
concerning withdrawal is consistent with Article 10(2)(p) 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. 
1. Jurisdiction of the Court of Justice of the European Union: 
(8) Under Article 2(2a) 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, agreements which are secured by a 
mortgage are not covered by the Directive. In the present case, the German 
legislature has, however, made use of the possibility conferred under recital 
10 of the Directive to apply the provisions of the Directive to an area that is 
not actually covered by its scope and also to make real estate loan 
agreements subject to the requirements of the Directive [...]. The 
interpretation of EU law implemented in an exaggerated manner by 
provisions of national law is subject to the jurisdiction of the Court of 
Justice (CJEU, judgment of 17 July 1997 — C-130/95 —, juris). 
KREISSPARKASSE SAARLOUIS 
 
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2. The provisions of national law relevant to the questions referred 
(9) (a) The provisions of the BGB and of the EGBGB in the version valid 
at the time of conclusion of the agreement are decisive for the decision [...]. 
(10) (b) Under Paragraph 495(1) of the BGB in the version valid from 
30 July 2010 up to 12 June 2014 (‘old version’), the borrower is entitled to a 
right of withdrawal in accordance with Paragraph 355 of the BGB in the 
case of a consumer loan agreement. Under [Or. 5] Paragraph 495(2)(2)(b) of 
the BGB, old version, in a departure from Paragraph 355(2) of the BGB in 
the version valid from 11 June 2010 up to 12 June 2014 (‘old version’), the 
withdrawal period does not begin to run before the borrower receives the 
mandatory information in accordance with Paragraph 492(2) of the BGB. 
(11) (c) Under Paragraph 492(2) of the BGB in the version valid from 
30 July 2010 up to 12 June 2014 (‘old version’), the agreement must contain 
the information prescribed for the consumer loan agreement in accordance 
with Article 247, Paragraphs 6 to 13, of the EGBGB. 
(12) (d) Article 247, Paragraph 6(1), of the EGBGB in the version valid 
from 4 August 2011 up to 12 June 2014 (‘old version’) sets out the 
information that the consumer loan agreement must contain. The further 
information that must mandatorily be included in the agreement is laid down 
in Article 247, Paragraph 6(2), first and second sentence, Paragraph 7, 
Paragraph 8(2) (for agreements with additional benefits), Paragraph 12(1), 
second sentence, No 2 (for linked agreements and financial aid in return for 
payment), and Paragraph 13(1) (in the case of involvement of a loan broker) 
of the EGBGB, old version. 
(13) (e) Article 247, Paragraph 9, of the EGBGB in the version valid from 
11 June 2010 up to 20 March 2016 (old version) provides, in the case of 
consumer loan agreements within the meaning of Paragraph 503 of the 
BGB, in a departure from Paragraphs 3 to 8, 12 and 13 of the EGBGB, old 
version, that (only) the information in accordance with Paragraph 3(1)(1) to 
(7), (10) and (13) and in accordance with Paragraph 3(4) and in accordance 
with Paragraph 8 of the EGBGB, old version, is mandatory in the 
precontractual information and in the consumer loan agreement (first 
subparagraph, first sentence) and that the agreement must also contain the 
information relating to the right of withdrawal in accordance with 
Paragraph 6(2) of the EGBGB (first subparagraph, third sentence). 
(14) (f) In Paragraph 503(1) of the BGB in the version from 11 June 2010 
up to 20 March 2016 (‘old version’), real estate loan agreements are legally 
defined as agreements in which the provision of the loan is contingent upon 
being secured by a mortgage and takes place under conditions customary for 
agreements secured by mortgages and the interim financing thereof, where it 
is equivalent to securing by means of a mortgage if no such securing is 
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effected in accordance with Paragraph 7(3) to (5) of the Gesetz über 
Bausparkassen (Law on Building Societies). [Or. 6] 
3. The relevant case-law of the Bundesgerichtshof (Federal Court of 
Justice, Germany) 
(15) According to settled case-law of the Bundesgerichtshof, the information 
concerning withdrawal used by the defendant is considered to be suitable for 
triggering the withdrawal period. [...] [arguments relating to 
Paragraph 492(2) of the BGB] 
4. Doubts concerning the compatibility with Article 10(2)(p) of Directive 
2008/48/EC of the European Parliament and of the Council of 23 April 2008 
(16) (a) Under Article 10(2)(p) 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, the credit 
agreement must specify ‘in a clear and concise manner’, among other things, 
‘the existence or absence of a right of withdrawal, the period during which 
that right may be exercised and other conditions governing the exercise 
thereof, including information concerning the obligation of the consumer to 
pay the capital drawn down and the interest in accordance with 
Article 14(3)(b) and the amount of interest payable per day’. 
(17) (b) The present Chamber has concerns as to whether the phrasing 
approved by the Bundesgerichtshof, namely that the withdrawal period 
begins ‘after conclusion of the agreement but only once the borrower has 
received all the mandatory information in accordance with Paragraph 492(2) 
of the BGB […]’, is ‘clear and concise’ within the meaning of 
Article 10(2)(p) 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, in light of the following 
considerations: 
(18) (1) In the information concerning withdrawal, which is not only 
intended to inform the consumer in relation to his right of withdrawal but 
also to enable the consumer to exercise that right of withdrawal [...], the 
mandatory information required to initiate the period is incomplete, but only 
listed by way of example. Moreover, reference is made to the provision of 
[Or. 7] Paragraph 492(2) of the BGB, old version, which in turn refers to the 
provisions of Article 247, Paragraphs 6 to 13, of the EGBGB, which in turn 
again refer to provisions of the BGB (‘cascade referencing’). The consumer 
must therefore read numerous legal provisions in a variety of legislative 
texts for himself in order to find out the mandatory information that is 
decisive for initiating the withdrawal period. 
KREISSPARKASSE SAARLOUIS 
 
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(19) There are already concerns as to whether the fact that the conditions for 
initiating the period are not specifically mentioned in the information 
concerning withdrawal, but rather the consumer is instructed to inform 
himself by reading numerous provisions in a variety of legislative texts as to 
which conditions have to be satisfied in order for the period of withdrawal to 
be initiated in the case of his agreement is essentially compatible with the 
requirement for clarity and conciseness of Article 10(2)(p) of Directive 
2008/48/EC of the European Parliament and of the Council of 23 April 
2008. In this connection, the Landgericht proceeds on the assumption that 
the information concerning the start of the period for withdrawal should also 
be included among the information required by the Directive in relation to 
the ‘period’ for withdrawal — or at least among the ‘other conditions’ — 
and therefore the mandatory information, upon the provision of which the 
initiation of the period of withdrawal is contingent, should be specifically 
mentioned in the information concerning withdrawal itself. 
(20) In this connection the Landgericht in particular cannot share the view that a 
list of the mandatory information that is not only exemplary but intended to 
be complete would by contrast lead to a situation in which the consumer 
would have to be provided with redundant and scarcely more readable 
‘information’ instead of the clear and concise information required by 
Directive 2008/48/EC of the European Parliament and of the Council of 
23 April 2008 [...]. The required mandatory information could easily be 
exhaustively enumerated in the information concerning withdrawal. This 
would make the information concerning withdrawal more extensive, but it 
would be neither ‘redundant’ nor ‘scarcely more readable’. This is shown 
already by Article 10 of the Directive itself, which contains all the required 
information and is certainly comprehensive, but moreover clear and easy to 
read. 
(21) (2) Concerns exist against the notion that the information concerning 
withdrawal provided by the defendant in relation to the period for 
withdrawal is clear and concise — a reference to [Or. 8] provisions of 
national law should not per se be contrary to the requirements of the 
Directive — but in any case because the consumer is not enabled, by means 
of the ‘cascade referencing’, to find out independently for himself the 
mandatory information required to initiate the withdrawal period. The 
burden imposed on the consumer by the chain of references not only limits 
the consumer to determining the relevant mandatory information by simply 
reading legislative texts. Rather, the reference to Article 247, Paragraph 9, of 
the EGBGB, old version, necessarily leads to the consumer having to answer 
the legal question as to whether he has entered into a consumer loan 
agreement within the meaning of Paragraph 503 of the BGB, old version, 
with the lender. Only after answering this question will the consumer be in a 
position to know whether in his case the period for withdrawal is initiated by 
means of the provision of the reduced mandatory information as per 
Article 247, Paragraph 9, of the EGBGB, old version, or whether the further 
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mandatory information is required to initiate this period. The question of 
whether a real estate loan agreement within the meaning of Paragraph 503 of 
the BGB, old version, is present is thus not a question that the average 
consumer without prior legal training — to whom the Bundesgerichtshof 
regularly also refers [...] — would be able to answer. 
(22) To do this, the consumer would have to check whether the provision of the 
loan is contingent upon being secured by a mortgage and takes place under 
conditions that are customary for agreements secured by mortgage and the 
interim financing thereof. The consumer may be able to understand whether 
the provision of the loan is contingent upon being secured by a mortgage by 
simply reading the loan agreement. However, it is quite simply no longer 
possible for the consumer to check whether the loan has been granted under 
conditions that are customary for agreements secured by mortgage and the 
interim financing thereof. It is no longer clear from simply reading the 
legislation where this is the case. In order to be able to answer this question, 
the consumer would instead have to conduct a legal examination on the basis 
of the relevant case-law of the Bundesgerichtshof, according to which the 
agreed interest rate is in any event still to be regarded as customary on the 
market when it is up to 1 percentage point above the interest rates published 
in the monthly interest statistics of the German Federal Bank [...]. As the 
relevant [Or. 9] average consumer cannot be expected to be familiar with 
this relevant case-law of the Bundesgerichtshof and he is also otherwise 
unable to learn what he is supposed to understand by the term market 
customary conditions, the ‘cascade referencing’ necessarily leads to the 
consumer having to seek legal advice in order to be able to find out the 
conditions for the initiation of the withdrawal period. 
(23) Also in the case of further provisions of Article 247, Paragraphs 3 to 13, of 
the EGBGB legal inferences must be drawn by the consumer, which the 
latter is not capable of making without legal assistance ([...] [example]). 
(24) The present Chamber takes the view that information concerning withdrawal 
which, with regard to the initiation of the withdrawal period, in any event 
contains a chain of references necessitating a legal examination is not 
consistent with the requirement of the Directive that the information must be 
specified in a ‘clear’ and ‘concise’ manner. It appears out of the question 
that a consumer without prior legal training would be able to answer the 
question of the existence of a real estate loan agreement or linked 
agreements without seeking legal advice — which will generally cost 
money. However, he is unable independently and without having recourse to 
legal assistance to determine which mandatory information must be 
provided to initiate the withdrawal period, whether he has received all 
required mandatory information or when the withdrawal period begins or 
expires. 
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(25) All in all, the formulation used by the defendant does not appear to be 
‘clear’ and ‘concise’ within the meaning of Article 10(2)(p) 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. 
5. Relevance of the questions referred to the decision in the present 
proceedings: 
(26) (a) [...] [Or. 10] [...] [arguments relating to the relevance of the 
questions referred in respect of the alternative request] 
(27) (b) [...] [arguments relating to the lack of readiness for a decision in the 
legal dispute] 
(28) (c) [...] [Or. 11] [...] [arguments relating to the conclusive nature of the 
answer to the questions referred]. 
(29) [...] [disregarding of a further question for referral] 
[...]