Opinion of the Advocate General — ECLI:EU:C:2025:271
Date: 2025-04-10
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-143/23 – 1 
Case C-143/23 
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 March 2023 
Referring court: 
Landgericht Ravensburg (Regional Court, Ravensburg, Germany) 
Date of the decision to refer: 
1 March 2023 
Applicants: 
TJ 
KI 
FA 
Defendants: 
Mercedes-Benz Bank AG 
Volkswagen Bank GmbH 
  
Subject matter of the case in the main proceedings 
Consumer credit agreements – Directive 2008/48/EC – Right of withdrawal – 
Compensation – Calculation of compensation – Obligation on the consumer to 
pay interest on the amount of credit received in the event of withdrawal from the 
credit agreement 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-143/23 
 
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Questions referred 
1. Is it compatible with EU law, in particular Article 14(1) of Directive 
2008/48/EC, if, in the case of withdrawal from a consumer credit agreement 
linked to a vehicle sales agreement concluded with a brick-and-mortar 
trader, the amount of compensation for the diminished value to be paid by 
the consumer to the creditor on return of the vehicle financed is calculated 
by deducting from the trader’s sales price at the time of purchase of the 
vehicle by the consumer the trader’s purchase price at the time of the return 
of the vehicle? 
2. Is the first sentence of Article 14(3)(b) of Directive 2008/48/EC fully 
harmonised, and therefore binding on the Member States, as regards 
consumer credit agreements which are linked to an agreement for the sale of 
a vehicle? 
If question 2 is answered in the negative: 
3. Is it compatible with EU law, in particular Article 14(1) of Directive 
2008/48/EC, if, following withdrawal from a consumer credit agreement 
linked to a vehicle sales agreement, the borrower is obliged to pay interest at 
the contractually agreed borrowing rate to the creditor (or to the seller) for 
the period between the payment of the loan to the seller of the vehicle being 
financed and the time when the vehicle is returned? 
Provisions of European Union law relied on 
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 (‘Directive 2008/48’), in particular Article 14(1) 
Provisions of national legislation 
Bürgerliches Gesetzbuch (Civil Code, ‘the BGB’), in particular Paragraphs 355, 
356b, 492 and 495 and Paragraphs 357, 357a and 358, in the version applicable 
until 27 May 2022. 
Einführungsgesetz zum Bürgerlichen Gesetzbuch (Introductory Act to the Civil 
Code; ‘the EGBGB’), Article 247(3) and (6) 
Brief summary of the facts and procedure 
1 The present request for a preliminary ruling is based on three different sets of 
facts. 
MERCEDES-BENZ BANK AND VOLKSWAGEN BANK 
 
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2 In the first case, the applicant concluded with the defendant a credit agreement for 
EUR 36 159, which was used to purchase a motor vehicle for a purchase price of 
EUR 36 159 for private use. The amount was transferred directly to the seller of 
the vehicle. The latter acted as an intermediary for the conclusion of the credit 
agreement for the defendant. The credit agreement did not state as a percentage 
the interest rate applicable in the case of late payments at the time of the 
conclusion of the agreement. 
3 The applicant paid loan instalments totalling EUR 7 872.67 and, on 8 March 2021, 
repaid the loan early, paying EUR 28 524.36. In total, the applicant made 
payments to the defendant in the amount of EUR 36 397.03. By letter of 
11 October 2021, the applicant withdrew her declaration of intent to enter into the 
credit agreement. 
4 The applicant considers that the withdrawal is effective because the period of 
withdrawal had not begun due to erroneous mandatory information in the 
agreement. She claims that the defendant should be ordered to pay 
EUR 36 589.92, after deduction of the loss in value of EUR 2 264.28. 
5 The defendant contends that the action should be dismissed. It invokes, inter alia, 
the expiry of the period of withdrawal and the objection of inadmissible exercise 
of rights. The defendant further declares that a claim to interest of EUR 238.03 
should be offset against the amount of credit granted and requests a declaration 
that the applicant is liable to pay compensation for the diminished value until the 
vehicle is returned. 
6 The applicant recognises that right in principle, but takes the view that there is 
only a right to compensation of EUR 2 264.28, since there is no need to take into 
account VAT of 19% and the trader’s margin of 15% of the net purchase price. 
7 In the second case, the applicant concluded a credit agreement with the defendant 
for EUR 29 500, used to purchase a Mercedes E 220 for a purchase price of 
EUR 32 500 for private use. The amount was transferred directly to the seller of 
the vehicle. In addition, the applicant made an advance payment of EUR 3 000 to 
the seller. The latter acted as an intermediary for the conclusion of the credit 
agreement for the defendant. The agreement did not state as a percentage the 
interest rate applicable in the case of late payments at the time of the conclusion of 
the agreement. 
8 The applicant paid the defendant loan instalments of EUR 5 924.48, that is a total 
of EUR 8 924.48 including the advance payment. By letter of 31 October 2019, 
the applicant withdrew his declaration of intent to enter into the credit agreement. 
9 The applicant claims, inter alia, that the defendant should be ordered to pay the 
sum of EUR 8 924.48 concurrently with the transfer of the vehicle and seeks a 
declaration that he is not liable to pay interest or repayments because of the 
withdrawal. The applicant considers that the withdrawal is effective because the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-143/23 
 
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period of withdrawal had not begun due to erroneous mandatory information in 
the agreement. 
10 The applicant also seeks a declaration that he is not liable to pay compensation for 
any diminished value of the vehicle. The applicant questions, in the light of EU 
law, whether a bank may claim compensation where it has not complied with its 
obligations to provide information. At the very least, the VAT and trader margin 
should be excluded from the loss in value. 
11 The defendant applies for the action to be dismissed. It raises, inter alia, the 
objection that the period of withdrawal has expired and the exercise of the right of 
withdrawal was inadmissible. 
12 The defendant seeks a declaration from the Court that the applicant is liable to pay 
compensation for the diminished value until the return of the vehicle and, in 
addition, compensation for use of 3.92% per annum on the outstanding loan 
balance for the period between the payment of the loan to the seller and the return 
of the vehicle. The applicant rejects that claim. 
13 In the third case, the applicant concluded with the defendant a credit agreement 
for EUR 35 300 for the purchase of a VW Touareg for a purchase price of 
EUR 51 300. The amount was transferred directly to the seller of the vehicle. In 
addition, the applicant made an advance payment of EUR 16 000 to the seller. The 
latter acted as an intermediary for the conclusion of the credit agreement for the 
defendant. The credit agreement did not state as a percentage the interest rate 
applicable in case of late payment at the time of the conclusion of the agreement. 
14 The applicant paid the defendant loan instalments totalling EUR 8 800 and thus 
paid a total amount of EUR 24 800, including the advance payment. By letter of 
20 July 2020, the applicant withdrew his declaration of intent to enter into the 
credit agreement. 
15 The applicant considers that the withdrawal is effective because the period of 
withdrawal had not begun due to erroneous mandatory information in the 
agreement. The applicant claims, inter alia, that the defendant should be ordered 
to pay him EUR 24 800, less compensation in the amount of EUR 24 550, 
together with interest, concurrently upon delivery of the vehicle, and a declaration 
that, as a result of that withdrawal, he is not liable to make interest payments or 
loan repayments. The applicant calculates the loss in value on the basis of the 
difference between the purchase price of EUR 51 300 and the value of 
EUR 26 750 on the date on which the action was brought, calculated on the basis 
of the used car valuation of the German automobile club ADAC. 
16 The defendant submits that the action should be dismissed. It raises, inter alia, the 
objection that the deadline for exercising the right of withdrawal has expired. The 
defendant considers that the first question referred for a preliminary ruling is not 
relevant to the outcome of the dispute, since it has not challenged the 
MERCEDES-BENZ BANK AND VOLKSWAGEN BANK 
 
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compensation calculated by the applicant and that amount may certainly serve as a 
basis for the court decision. 
Brief summary of the basis for the reference 
17 The questions referred for a preliminary ruling follow on from the questions 
already referred in the pending cases C-38/21, C-47/21, C-232/21 and C-715/22. 
With regard to the questions referred for a preliminary ruling, the referring court 
states as follows: 
18 The first question concerns the problem of calculating the compensation which the 
borrower must pay in respect of the diminished value of the goods. This is 
controversial in national case-law and academic writing. To date, the 
Bundesgerichtshof (Federal Court of Justice, ‘the BGH’) has relied on the so-
called comparative value method. According to that method, the applicant is 
required to repay the difference between the market value of the vehicle financed 
at the time the loan agreement was concluded, determined on the basis of the 
consideration agreed in the contract, and the market value of the vehicle when 
returning it to the creditor. 
19 However, by judgment of 25 October 2022, the BGH departed from that method 
and held that, for the application of the comparative value method, it is the 
trader’s selling price (that is to say, including the trader’s margin and turnover tax) 
that is decisive at the time of purchase by the consumer, and the trader’s purchase 
price (that is to say, without the trader’s margin and turnover tax) that is decisive 
for the value when returning the vehicle. The BGH justifies the approach of the 
trader’s purchase price when returning the vehicle by stating that this is the price 
at which the consumer could sell the vehicle and, in addition, that price also 
represents the value of the vehicle to the trader at the time of return. The BGH 
also states that, in addition to the profit margin, the trader’s sale price also covers 
the trader’s general costs and its efforts to resell the vehicle, for example to draw 
up sales advertisements, the time devoted to sales discussions and test drives and 
the costs of preparing the vehicle. Furthermore, the price at which a second-hand 
vehicle is sold by a trader is higher, since, where vehicles are purchased from a 
commercial trader, the purchaser has guaranteed rights which are normally 
excluded in the event of purchase from a private seller. 
20 Thus, the BGH departs from its previous case-law on compensation, according to 
which the costs of preparing and making a resale and any entrepreneurial profit do 
not have to be reimbursed, as they also accrue when the consumer is not required 
to pay compensation because he has not used the goods unreasonably or 
excessively. The determination of market values, as now established by the BGH, 
results in a significantly diminished value (and therefore right to compensation) 
even where the vehicle has not been registered or driven a single meter before 
exercise of the withdrawal right. 
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21 The question arises, however, whether that is compatible with the first sentence of 
Article 14(1) of Directive 2008/48. The referring court refers to the judgment of 
3 September 2009, Messner (C-489/07, EU:C:2009:502), in which the Court held 
that it would be clearly at variance with the wording and purpose of Directive 
97/7/EC if the consumer were required to pay compensation merely because he 
had the opportunity to use the goods acquired under a distance contract while they 
were in his possession. Since the right of withdrawal intended precisely to give the 
consumer the opportunity to exercise that right, the fact of having made use of it 
cannot have the consequence that the consumer is able to exercise that right only 
against payment of compensation. This would, in particular, deprive the consumer 
of the opportunity to make completely free and independent use of the period for 
reflection granted to him by that directive. In particular, the Court considers that 
the efficiency and effectiveness of the right of withdrawal would be adversely 
affected if the amount of compensation were to appear disproportionate in relation 
to the purchase price of the goods at issue. 
22 The BGH’s method of calculation could run counter to that principle because, 
ultimately, the BGH imposes on the consumer not only compensation for the 
diminished value resulting from the use of the goods, but also the costs of resale, 
profit margin and VAT. These price-increasing items are due solely to the 
exercise of the right to withdrawal. They arise independently from the use of the 
vehicle. They also accrue when the vehicle was not registered before the exercise 
of the right of withdrawal and has not been driven a single meter. Thus, the BGH 
grants the trader not only compensation for the diminished value, but also 
compensation for the mere exercise of the right of withdrawal. 
23 Moreover, the method of calculation is contrary to the objective of Directive 
2008/48. The fact that the BGB only takes into account the trader’s purchase price 
at the time of return of the vehicle means that the consumer is in a less favourable 
position after declaring his withdrawal from the agreement than if he had not 
withdrawn from the agreement. If he sold the vehicle privately himself, he could 
obtain a considerably higher price than the trader’s purchase price. In the case of 
resale, consumers are not required to charge VAT, pass on costs or include a profit 
margin in the price, unlike traders. 
24 Furthermore, according to the referring court, the BGH’s method of calculation is 
also incompatible with the principle of prohibition of unjust enrichment (see, in 
relation to that principle, judgment of 9 July 2020, Czech Republic v Commission, 
C-575/18 P, EU:C:2020:530, paragraph 82). Due to the approach of the trader’s 
purchase price when returning the vehicle, the creditor can make a profit by 
selling the vehicle at a price higher than the trader’s purchase price. In so doing, it 
would enhance its assets and would be enriched. 
25 As regards questions 2 and 3: In the event of withdrawal from a consumer credit 
agreement linked to a vehicle sales agreement, it is questionable whether the 
creditor can claim interest on the credit after the withdrawal from the credit 
agreement. 
MERCEDES-BENZ BANK AND VOLKSWAGEN BANK 
 
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26 In its recent judgment of 25 October 2022, the BGH affirmed the right to receive 
interest for the period during which the loan was utilised. That is justified in 
particular by the fact that the obligation on the consumer to pay interest after 
withdrawing from the credit agreement, in accordance with Article 14(3)(b) of 
Directive 2008/48, is one of the fully harmonised subject matters of that Directive. 
27 The referring court is uncertain whether the first sentence of Article 14(3)(b) of 
Directive 2008/48, as regards credit agreements linked to sales agreements, is 
subject to full harmonisation and is therefore binding on the Member States, in 
accordance with Article 22(1) of that Directive, and assumes that the first sentence 
of Article 14(3) (b) of that Directive must refer to a standard consumer credit 
agreement which is not linked to another agreement. The requirements of that 
provision are therefore limited to the contractual relationship between the 
consumer and the creditor. However, if linked purchase agreements also become 
ineffective as a result of the withdrawal, as is the case under German law 
(Paragraph 358(2) of the BGB), the linked purchase agreement must also be 
revoked, in addition to the credit agreement. However, Directive 2008/48 does not 
specify either the effect of withdrawal on the linked agreement or the benefits that 
the contractual partners of the financed agreement (in this case, the buyer and 
seller) must reimburse. 
28 The revocation of a linked vehicle sales agreement cannot usefully be dissociated 
from the revocation of the credit agreement. In the case of a purchase financed by 
credit, the consumer does not receive a credit amount, but only the vehicle 
financed. By contrast, the seller receives the amount of credit in the form of the 
purchase price. The rights to revocation must also be based on that situation. It 
therefore seems possible to assume that the Member States may, in compliance 
with the general principles of EU law, regulate at their discretion the revocation of 
linked agreements, including by way of derogation from the first sentence of 
Article 14(3) (b) of Directive 2008/48. 
29 Recital 9 and Article 15(3) of Directive 2008/48, which allow Member States to 
maintain or introduce national provisions on the joint and several liability of the 
supplier of goods or services and the creditor, also argue in favour of a wide 
margin of discretion on the part of the Member States when regulating that 
contractual situation, as do national provisions relating to the termination of a 
sales or service agreement in the event of the consumer withdrawing from the 
credit agreement. 
30 If the second question referred for a preliminary ruling is answered in the 
negative, the further question arises as to whether it is compatible with EU law, in 
particular with the first sentence of Article 14(1) of Directive 2008/48, for the 
borrower to have to pay credit interest in the event of withdrawal from a consumer 
credit agreement linked to a vehicle sales agreement. 
31 Specifically, the referring court considers that it is necessary to examine whether 
the credit interest obligation complies with the principle of prohibition of unjust 
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enrichment laid down by the Court of Justice. It is true that, in the present case of 
a credit agreement linked to a sales agreement, there is enrichment on the part of 
the consumer in that he or she is allowed to use the vehicle. This thereby enhances 
his or her assets (Opinion of Advocate General Hogan in Joined Cases UK and 
Others, C-33/20, C-155/20 and C-187/20, EU:C:2021:629, paragraph 131). 
32 However, the consumer is not enriched by the use of the credit. The amount of 
credit is paid directly by the creditor, in the form of the purchase price of the 
vehicle, to the seller who can use the amount and is enriched by its use. It would 
therefore be contrary to the principle of prohibition of unjust enrichment if, in the 
context of the revocation of the credit and sales agreement, the consumer were to 
be required to pay interest for the use of the credit. 
33 Furthermore, the obligation to pay interest could also undermine the practical 
effectiveness of the exercise of the right of withdrawal provided for in the first 
sentence of Article 14(1) of Directive 2008/48. In accordance with that principle, 
enshrined in EU law, the consumer must be able to decide freely and without fear 
of financial disadvantages whether or not to maintain his or her agreements 
constituting an economic unit. 
34 According to the predominant view of the national case-law and academic writing, 
that protective objective of EU law is considered to be jeopardised if a consumer 
withdrawing from an agreement were to be required to repay to the creditor the 
amount of credit paid to the seller. He or she could indeed demand the return of 
that amount from the undertaking that received the amount of the credit. However, 
the consumer cannot be required to bear the risk of enforcing his or her claim 
against the seller. 
35 This consideration must also apply by analogy to the question of paying interest 
on the credit. Admittedly, if the consumer were to pay interest to the creditor on 
the loan, he or she could subsequently pursue remedies against the seller who 
received the credit (in the form of the purchase price) and who was able to profit 
therefrom. The seller may use the amount of credit for himself and is thus 
enriched. In that case, however, the consumer would have to take the trouble to 
enforce the claim and, above all, bear the risk that it could not be enforced. First, 
in any event, the consumer would bear a double burden for the revocation of the 
two agreements (for the diminished value of the vehicle and for the use of the 
credit). He or she could therefore not take a decision on withdrawal ‘without fear 
of financial disadvantages’. 
36 In conclusion, imposing on the consumer an obligation to pay interest for the use 
of the credit seems to be contrary both to the EU law principle of prohibition of 
unjust enrichment and to the EU law principle of the practical effectiveness of the 
exercise of the right of withdrawal.