Opinion of the Advocate General — ECLI:EU:C:2020:120
Date: 2020-02-27
Language of the case: French
Subject matter: Right of establishment;Financial provisions;Free movement of capital;Internal market - Principles;Consumer protection
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-778/18 — 1 
Case C-778/18 
Request for a preliminary ruling 
Date lodged: 
11 December 2018 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
5 December 2018 
Applicant: 
Association française des usagers de banques 
Defendant: 
Ministre de l’Économie et des Finances 
  
[…] 
[…] the Association française des usagers de banques (French Association of 
Bank Users) claims that the Conseil d’État (Council of State) should: 
(1) annul, […] decree No 2017-1099 of 14 June 2017 fixing the period during 
which the creditor may require the borrower to deposit his salary or similar 
income in a payment account opened with that creditor (‘domiciliation’); 
[…] 
The association submits that the decree at issue: 
- […]; [Or. 2] 
- […]; 
- is based on an order which disregards the principle of banking mobility 
stemming from secondary legislation of the European Union; 
EN 
REQUEST FOR A PRELIMINARY RULING OF 5. 12. 2018 — CASE C-778/18 
 
2  
- is vitiated by a manifest error of assessment in so far as it fixes at ten years 
the period during which the credit institution may require the borrower to deposit 
his income in an account opened with that institution; 
- […]. 
[…]; 
Having regard to: 
- […]; 
- Directive 2007/64/EC of the European Parliament and of the Council of 
13 November 2007; 
- Directive 2014/17/EU of the European Parliament and of the Council of 
4 February 2014; 
- Directive 2014/92/EU of the European Parliament and of the Council of 
23 July 2014; 
- Directive (EU) 2015/2366 of the European Parliament and of the Council of 
25 November 2015; 
- […]. [Or. 3] 
[…]. 
Whereas: 
1 […] Article 1 of the order of 1 June 2017 on mortgage loan offers that are 
conditional upon the borrower depositing his salary or similar income in a 
payment account opened with the lending institution, […] inserts into the Code de 
la consommation (Consumer Code) a new Article L. 313-25-1, which provides 
[…]: ‘The creditor may make the loan offer, as referred to in Article L. 313-24, 
conditional upon the borrower depositing his salary or similar income in a 
payment account, as referred to in Article L. 314-1 of the Code monétaire et 
financier (Monetary and Financial Code), opened with the creditor, provided that 
the creditor confers on the borrower an individual advantage as consideration. 
[…] The decree of 14 June 2017 fixing the period during which the creditor may 
require the borrower to deposit his salary or similar income in a payment account 
opened with that creditor, adopted for the purposes of applying the order of 1 June 
2017, inserts into the Consumer Code a new Article R. 313-21-1, which provides 
[…]: ‘The maximum period for depositing salaries or similar income in an 
account opened with the creditor, as referred to in Article L. 313-25-1, is fixed at 
ten years following the conclusion of the credit agreement or, as the case may be, 
the amendment to the initial credit agreement. That period cannot in any event 
ASSOCIATION FRANÇAISE DES USAGERS DE BANQUES 
 
3 
exceed the duration of the credit agreement’. The Association française des 
usagers de banques (AFUB) seeks annulment […] of that decree. 
2 In the first place, [rejection of the plea in law alleging infringement of the 
enabling law] […] [Or. 4] […]. 
3 In the second place, [rejection of the plea in law alleging failure to exercise fully 
powers conferred] […] 
4 In the third place, on the one hand, Directive 2014/92/EU of the European 
Parliament and of the Council of 23 July 2014 on the comparability of fees related 
to payment accounts, payment account switching and access to payment accounts 
with basic features refers, in recital 9 thereof, to the need ‘to establish a uniform 
set of rules to tackle the issue of low customer mobility, and in particular … to 
incentivise payment account switching’. The combined provisions of Article 12(3) 
of that directive and Article 45 of Directive 2007/64/EC of 13 November 2007 on 
payment services in the internal market, applicable on the date of the decree at 
issue, lay down a prohibition on charging fees for closing a payment account after 
a period of twelve months, which has since been reduced to six months by 
Article 55(2) of Directive (EU) 2015/2366 of the European Parliament and of the 
Council of 25 November 2015 on payment services in the internal market and 
repealing the directive of 13 November 2007. On the other hand, 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 refers, 
in recital 24 thereof, to the risk that the combination of a credit agreement with 
other financial services or products in packages may negatively affect consumers’ 
mobility, unless the components of the package can be bought separately. 
According to Article 12 of that directive: ‘1. Member States shall allow bundling 
practices but shall prohibit tying practices. 2. Notwithstanding paragraph 1, 
Member States may provide that creditors can request the consumer or a family 
member or close relation of the consumer to: (a) open or maintain a payment or a 
savings account, where the only purpose of such an account is to accumulate 
capital to repay the credit, to service the credit, to pool resources to obtain the 
credit, or to provide additional security for the creditor in the event of default; … 
3. Notwithstanding paragraph 1, Member States may allow tying practices when 
the creditor can demonstrate to its competent authority that the tied products or 
categories of product offered, on terms and conditions similar to each other, 
which are not made available separately, result in a clear benefit to the 
consumers taking due account of the availability and the prices of the relevant 
products offered on the market. … ’. 
5 It follows from what is stated in paragraph 1 that the provisions laid down in 
Article L. 313-25-1 of the Monetary and Financial Code, which stem from 
Article 1 of the order of 1 June 2017, allow credit institutions to make the grant of 
an individual advantage as part of a credit agreement offered to a borrower in 
relation to immovable property conditional upon the borrower’s commitment to 
deposit his salary or similar income in an account opened with that institution for 
REQUEST FOR A PRELIMINARY RULING OF 5. 12. 2018 — CASE C-778/18 
 
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a fixed period, failure to honour that commitment before the end of that period 
resulting in the [Or. 5] loss of the individual advantage. The decree at issue 
provides that the duration of that period may not exceed ten years or the duration 
of the credit agreement if it is shorter. The AFUB claims, first, that the order 
pursuant to which the decree at issue was adopted disregards the aim to facilitate 
banking mobility pursued by the directives cited in the previous paragraph, in so 
far as it authorises credit institutions to attach such advantages to opening an 
account and depositing income with them that waiving those advantages would 
have a prohibitive cost for borrowers which hinders banking mobility and, 
secondly, that the decree at issue disregards the same aim in so far as it fixes at ten 
years the maximum period during which credit institutions may make those 
advantages conditional upon borrowers depositing their salary or similar income 
in an account opened with those institutions. 
6 The response to the pleas in law raised by the applicant depends on whether, in the 
first place, the provisions of Article 12(2)(a) of Directive 2014/17/EU of 
4 February 2014 on credit agreements for consumers relating to residential 
immovable property, having regard, inter alia, to the purpose that they assign to 
the payment or savings account which they authorise to be opened or maintained, 
or the provisions of paragraph 3 of that article, authorise, first, the creditor to 
require the borrower, as consideration for an individual advantage, to deposit all 
of his salary or similar income in a payment account opened with that creditor 
during a period fixed by the credit agreement, whatever the amount, the 
instalments and the duration of the loan, and, secondly, that the period thus fixed 
may extend to ten years or, if it is shorter, the duration of the agreement. It 
depends, in the second place, on whether, first, Article 45 of Directive 
2007/64/EC of 13 November 2007, applicable at the material time and now recast 
as Article 55 of Directive (EU) 2015/2366 of 25 November 2015, and Articles 9 
to 14 of Directive 2014/92/EU of 23 July 2014, relating to the facilitation of 
banking mobility and to fees for closing a payment account, preclude the closure 
of an account opened by the borrower with the creditor for the purposes of 
depositing his income with that creditor as consideration for an individual 
advantage as part of a credit agreement from resulting, if it occurs before the 
expiry of the period fixed in that agreement, in the loss of that advantage, 
including more than a year after the opening of the account and, secondly, 
whether those provisions prevent the duration of that period extending to ten years 
or the total duration of the loan. 
7 Those questions have a crucial bearing on the outcome of the case upon which the 
Council of State must give judgment, and they raise a serious issue. Accordingly, 
they must be referred to the Court of Justice of the European Union pursuant to 
Article 267 TFEU and, pending a ruling by that Court, the application brought by 
the AFUB must be stayed. 
HAS DECIDED AS FOLLOWS: 
ASSOCIATION FRANÇAISE DES USAGERS DE BANQUES 
 
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[…] The following questions are [referred] to the Court of Justice of the European 
Union: 
– Do the provisions of Article 12(2)(a) of Directive 2014/17/EU of 4 February 
2014 on credit agreements for consumers relating to residential immovable 
property, having regard, inter alia, to the purpose that they assign to the 
payment or savings account which they authorise to be opened or maintained, 
or the provisions of paragraph 3 of that article, authorise, first, the creditor to 
require the borrower, as consideration for an individual advantage, to deposit 
all of his [Or. 6] salary or similar income in a payment account opened with 
that creditor during a period fixed by the credit agreement, whatever the 
amount, the instalments and the duration of the loan, and, secondly, that the 
period thus fixed may extend to ten years or, if it is shorter, the duration of the 
agreement? 
– Do Article 45 of Directive 2007/64/EC of 13 November 2007, applicable at the 
material time and now recast as Article 55 of Directive (EU) 2015/2366 of 
25 November 2015, and Articles 9 to 14 of Directive 2014/92/EU of 23 July 
2014, relating to the facilitation of banking mobility and to fees for closing a 
payment account, preclude the closure of an account opened by the borrower 
with the creditor for the purposes of depositing his income with that creditor as 
consideration for an individual advantage as part of a credit agreement from 
resulting, if it occurs before the expiry of the period fixed in that agreement, in 
the loss of that advantage, including more than a year after the opening of the 
account and, secondly, do those provisions prevent the duration of that period 
extending to ten years or the total duration of the loan? 
[…][Or. 7] 
[…] 
[stay of proceedings, notification of this judgment and signatures]