Judgment;Abstract — ECLI:EU:C:2023:1014
Date: 2023-12-21
Language of the case: German
Court formation: Grand Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-38/21 – 1 
Case C-38/21 
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: 
22 January 2021 
Referring court: 
Landgericht Ravensburg (Germany) 
Date of the decision to refer: 
30 December 2020 
Applicant: 
VK 
Defendant: 
BMW Bank GmbH 
  
Subject matter of the main proceedings 
Leasing agreement – Categorisation as a consumer credit agreement – Mandatory 
information – Directive 2008/48/EC – Right of withdrawal – Forfeiture of the 
right of withdrawal – Abuse of the right of withdrawal 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Statutory presumption in accordance with Article 247(6), second paragraph, 
third sentence, and Article 247(12), first paragraph, third sentence, of the 
Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the 
German Civil Code, ‘the EGBGB’) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-38/21 
 
2  
(a) Inasmuch as they state that contract terms which conflict with the 
requirements of Article 10(2)(p) of Directive 2008/48/EC satisfy the 
requirements of Article 247(6), second paragraph, first and second 
sentences, of the EGBGB, and the requirements laid down in 
Article 247(12), first paragraph, second sentence, point 2(b), of the 
EGBGB, are Article 247(6), second paragraph, third sentence, and 
Article 247(12), first paragraph, third sentence, of the EGBGB 
incompatible with Article 10(2)(p) and Article 14(1) of Directive 
2008/48/EC? 
If so: 
(b) Does it follow from EU law, in particular from Article 10(2)(p) and 
Article 14(1) of Directive 2008/48/EC, that, inasmuch as they state that 
contract terms which conflict with the requirements of Article 10(2)(p) 
of Directive 2008/48/EC satisfy the requirements of Article 247(6), 
second paragraph, first and second sentences, of the EGBGB, and the 
requirements laid down in Article 247(12), first paragraph, second 
sentence, point 2(b), of the EGBGB, Article 247(6), second paragraph, 
third sentence, and Article 247(12), first paragraph, third sentence, of 
the EGBGB must be disapplied? 
If the answer to Question 1(b) is in the negative: 
2. Mandatory information required under Article 10(2) of Directive 
2008/48/EC 
(a) Is Article 10(2)(p) of Directive 2008/48/EC to be interpreted as 
meaning that the amount of interest payable per day, which must be 
specified in the credit agreement, must be calculated from the 
contractual borrowing rate specified in the agreement? 
(b) Is Article 10(2)(l) of Directive 2008/48/EC to be interpreted as 
meaning that the interest rate applicable in the case of late payments as 
applicable at the time of the conclusion of the credit agreement must 
be specified as an absolute number or, at the very least, that the current 
reference interest rate (in this case, the base rate in accordance with 
Paragraph 247 of the Bürgerliches Gesetzbuch (German Civil Code, 
‘the BGB’)), from which the interest rate applicable in the case of late 
payments is obtained by adding a premium (in this case, a premium of 
five percentage points in accordance with Paragraph 288(1), second 
sentence, of the BGB), must be specified as an absolute number, and 
must the consumer be informed of the reference interest rate (base rate) 
and the variability of that rate? 
(c) Is Article 10(2)(t) of Directive 2008/48/EC to be interpreted as 
meaning that the essential formal requirements for a complaint and/or 
BMW BANK 
 
3 
redress in the out-of-court complaint and/or redress procedure must be 
specified in the text of the credit agreement? 
If at least one of the above Questions 2(a) to (c) is answered in the 
affirmative: 
(d) Is Article 14(1), second sentence, point (b), of Directive 2008/48/EC to 
be interpreted as meaning that the period of withdrawal does not begin 
until the information required under Article 10(2) of Directive 
2008/48/EC has been provided fully and correctly? 
If not: 
(e) What are the relevant criteria for determining whether the period of 
withdrawal is to begin in spite of the fact that that information is 
incomplete or incorrect? 
If the above Question 1(a) and/or at least one of Questions 2(a) to (c) is answered 
in the affirmative: 
3. Forfeiture of the right of withdrawal in accordance with Article 14(1), first 
sentence, of Directive 2008/48/EC: 
(a) Is the right of withdrawal in accordance with Article 14(1), first 
sentence, of Directive 2008/48/EC subject to forfeiture? 
If so: 
(b) Is forfeiture a time limit on the right of withdrawal which must be 
regulated by an act of parliament? 
If not: 
(c) Does forfeiture depend, from a subjective standpoint, on the consumer 
knowing that his or her right of withdrawal continued to exist or, at 
least, on his or her ignorance being ascribed to gross negligence? 
If not: 
(d) Does the creditor’s facility to provide the consumer subsequently with 
the information required under Article 14(1), second sentence, point 
(b), of Directive 2008/48/EC and thus trigger the period of withdrawal 
preclude the application of the rules of forfeiture in good faith? 
If not: 
(e) Is this compatible with the established principles of international law 
by which the German courts are bound under the Grundgesetz (Basic 
Law)? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-38/21 
 
4  
If so: 
(f) How are German legal practitioners to resolve a conflict between the 
binding prescripts of international law and the prescripts of the Court 
of Justice of the European Union? 
4. Assumption of an abuse of the consumer’s right of withdrawal under 
Article 14(1), first sentence, of Directive 2008/48/EC: 
(a) Is it possible to abuse the right of withdrawal under Article 14(1), first 
sentence, of Directive 2008/48/EC? 
If so: 
(b) Is the assumption of an abuse of the right of withdrawal a limitation of 
the right of withdrawal which must be regulated by an act of 
parliament? 
If not: 
(c) Does the assumption of an abuse of the right of withdrawal depend, 
from a subjective standpoint, on the consumer knowing that his or her 
right of withdrawal continued to exist or, at least, on his or her 
ignorance being ascribed to gross negligence? 
If not: 
(d) Does the creditor’s facility to provide the consumer subsequently with 
the information required under Article 14(1), second sentence, point 
(b), of Directive 2008/48/EC and thus trigger the period of withdrawal 
preclude the assumption of an abuse of rights in the exercise of the 
right of withdrawal in good faith? 
If not: 
(e) Is this compatible with the established principles of international law 
by which the German courts are bound under the Basic Law? 
If so: 
(f) How are German legal practitioners to resolve a conflict between the 
binding prescripts of international law and the prescripts of the Court 
of Justice of the European Union? 
Provisions of EU 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 
BMW BANK 
 
5 
87/102/EEC (‘Directive 2008/48’), in particular Article 10(2)(f), (l), (p) and (t) 
and Article 14(1), second sentence, point (b) 
Provisions of national law relied on 
Grundgesetz (Basic Law, ‘the GG’), in particular Article 25 
Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the 
German Civil Code, ‘the EGBGB’), Article 247(3), (6), (7) and (12) 
Bürgerliches Gesetzbuch (German Civil Code, ‘the BGB’), in particular 
Paragraphs 242, 247, 288, 355, 356b, 357, 357a, 495 and 506. Paragraph 506(1) 
of the BGB provides that the provisions applicable to general consumer credit 
agreements are to be applied mutatis mutandis to agreements by which a trader 
grants some other kind of financial accommodation to a consumer in return for 
remuneration. According to subparagraph 2, contracts between a trader and a 
consumer for the use of an object in return for remuneration are deemed to grant 
financial accommodation in return for remuneration if, inter alia, it is agreed that 
the consumer is liable for a certain value of the object when the contract comes to 
an end (Paragraph 506(2)(3) of the BGB). 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 10 November 2018, the applicant concluded with the defendant a leasing 
agreement for a motor vehicle for private use. It was agreed that the applicant was 
to make payments totalling EUR 12 486.80, consisting of a lease down payment 
of EUR 4 760 upon taking delivery of the car, followed by 24 lease instalments of 
EUR 321.95 each. The contractually agreed borrowing rate was 3.49% p.a. for the 
entire term, and the annual percentage rate of charge was 3.55% p.a. The net loan 
amount was specified as being EUR 40 294.85, corresponding to the purchase 
price of the vehicle. It was further agreed that the applicant’s mileage would be 
10 000 km per year and that, on return of the vehicle, he would be obliged to pay 
7.37 cents for each additional kilometre driven, while 4.92 cents would be 
reimbursed for each kilometre not driven. In addition, if the vehicle was not in a 
condition corresponding to its age and the agreed mileage when returned, the 
lessee would be obliged to pay compensation for the reduction in value. 
2 The applicant took delivery of the vehicle and paid the monthly lease instalments 
from January 2019. By letter of 25 June 2019, the applicant withdrew his 
declaration of intention to conclude the leasing agreement. 
3 The agreement contains the following information on withdrawal: 
‘Right of withdrawal 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-38/21 
 
6  
You may withdraw your contractual declaration, without giving reasons, within 
14 days. The period begins after conclusion of the contract, but not before the 
borrower has received all the mandatory information referred to in 
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).’ 
‘Consequences of withdrawal 
If you have already taken delivery of the vehicle, you must return it at the latest 
within 30 days and pay interest at the agreed borrowing rate for the period 
between the taking of delivery and return of the vehicle. The period begins when 
the notification of withdrawal is dispatched. For the period between the taking of 
delivery and return, interest of EUR 0.00 per day is payable in the event of a 
complete transfer of the rights of use. This amount is reduced accordingly if the 
rights of use of the vehicle have been transferred only partially.’ 
Essential arguments of the parties in the main proceedings 
4 The applicant takes the view that the withdrawal is effective because the period of 
withdrawal has not begun, and he bases this, inter alia, on inadequate mandatory 
information. The applicant therefore seeks a judicial finding that the defendant 
cannot assert any rights under the leasing agreement – in particular any 
entitlement to payment of lease instalments. 
5 The defendant considers that the action is unfounded. It contends that the 
applicant did not have a right of withdrawal, since the provisions on withdrawal 
that apply to consumer credit agreements are not applicable to leasing agreements. 
Furthermore, submits the defendant, it had duly provided the applicant with both 
the information concerning withdrawal and all the mandatory information in the 
leasing agreement. In particular, the information concerning withdrawal 
corresponds exactly to the statutory model, with the result that the information 
concerning withdrawal is deemed to be correct in accordance with Article 247(6), 
second paragraph, first and third sentences, of the EGBGB, and the withdrawal is 
time-barred. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The success of the action hinges on whether withdrawal from the leasing 
agreement was effective and whether the defendant can possibly invoke the plea 
of forfeiture or the plea of abuse of the right of withdrawal. 
7 The effectiveness of the applicant’s notification of withdrawal presupposes, 
firstly, that he has a right of withdrawal in the first place. This is questionable 
because, according to Article 2(2)(d) of Directive 2008/48, the latter does not 
apply to hiring or leasing agreements where an obligation to purchase the object 
BMW BANK 
 
7 
of the agreement is not laid down either by the agreement itself or by any separate 
agreement. However, according to the case-law of the Court of Justice, it is clearly 
in the interest of the European Union that provisions taken from an EU measure 
should be interpreted uniformly (judgment of 26 March 2020, Kreissparkasse 
Saarlouis, C-66/19, EU:C:2020:242, paragraph 29). 
8 The legislation applicable in the present case is based on provisions taken from 
EU law in such a manner, since the German legislature took up the option, 
provided for in recital 10 of Directive 2008/48, to extend the rules laid down in 
the directive to areas not covered by its scope. As a result of the reference in 
Paragraph 506(1), first sentence, and Paragraph 506(2)(3) of the BGB to the 
provisions on general consumer loan agreements, the provisions of Directive 
2008/48 transposed into national law also apply by analogy to leasing agreements 
such as that in the present case, since the most important aspect is not the transfer 
of rights of use, but rather the financing. Accordingly, the applicant has a right of 
withdrawal. 
9 Furthermore, the question arises as to whether the withdrawal was limited in time. 
The applicant’s notification of withdrawal is valid only if the two-week period of 
withdrawal regulated in Paragraph 355(2), first sentence, of the BGB had not 
expired when notification of withdrawal was given. According to 
Paragraph 356b(2), first sentence, of the BGB, the period of withdrawal does not 
commence if the mandatory information required under Paragraph 492(2) of the 
BGB and Article 247(6) to (13) of the EGBGB is not included in full in the credit 
agreement. In that case, the period according to Paragraph 356b(2), second 
sentence, of the BGB only begins on subsequent provision of the mandatory 
information. Incomplete mandatory information would therefore have to be 
assumed in the present case if, in particular, the information concerning 
withdrawal was not adequately provided or at least one of the items of information 
required by law in the credit agreement was incomplete or was incorrect. 
10 In the event of incomplete mandatory information, withdrawal would be 
permissible in principle, since German law does not provide for extinction of the 
right of withdrawal for consumer credit agreements. The national legislature 
deliberately opted for an indefinite right of withdrawal. 
11 Nevertheless, a forfeiture or an abuse of the right of withdrawal could be assumed 
if the conditions for this were met under national law and such an assumption did 
not run counter to the requirements of EU law. 
12 The referring court states the following with regard to the individual questions 
referred: 
13 Questions 1(a) and 1(b): The findings on Questions 1(a) and 1(b) correspond in 
essence to those on Questions 1(a) and 1(b) in paragraphs 10 to 15 of the 
summary of the request for a preliminary ruling in Case C-336/20. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-38/21 
 
8  
14 Question 2(a): This question concerns the indication of the borrowing rate. In the 
present case, a borrowing rate of 3.49% p.a. is specified on p. 5 of the leasing 
agreement, while an interest amount of EUR 0.00 is specified in the information 
concerning withdrawal on p. 4 of the leasing agreement. 
15 The resolution of the dispute depends on how Article 10(2)(p) of Directive 
2008/48 is to be understood. The wording does allow for the interpretation that it 
is possible to specify to the consumer an amount of interest payable per day which 
does not have to correspond to the contractually agreed borrowing rate (according 
to the view taken by the Bundgerichtshof (Federal Court of Justice, Germany)). 
16 However, a different understanding of Article 10(2)(p) of Directive 2008/48 is 
supported by the wording of the second sentence of Article 14(3)(b) of that 
directive, according to which, after exercising the right of withdrawal, the interest 
to be paid by the consumer for the period from the date the credit was drawn down 
until the date the capital is repaid is to be calculated on the basis of the agreed 
borrowing rate. It can be inferred from this that the interest payable per day must 
also be calculated from the borrowing rate as defined in Article 10(2)(f) of 
Directive 2008/48. This is also supported by the fact that the information pursuant 
to Article 10(2)(p) of that directive must be specified in a clear and concise 
manner. The reason for this is that, if the amount of interest payable per day 
cannot be calculated on the basis of the contractually agreed borrowing rate, a 
consumer may get the impression that an amount of interest payable per day 
which differs therefrom (as in the present case of EUR 0.00) is simply a data entry 
error and that he or she is nevertheless supposed to be obliged to pay the 
contractual borrowing rate. 
17 Questions 2(b) to 2(e): The findings of the referring court on these questions are 
essentially the same as those on the corresponding questions in the request for a 
preliminary ruling in Case C-336/20 (Questions 2(b) to 2(d)). 
18 Questions 3(a) to 3(f) on forfeiture: The referring court explains that forfeiture 
under German law is treated as a case of the inadmissible exercise of a right by 
reason of inconsistent conduct and that the breach lies in the unwarranted delay in 
exercising the right. Forfeiture presupposes that the entitled party has a right 
which he or she fails to exercise for a long period of time, even though he or she 
was able in fact to do so, and that the obligated party was entitled to assume and 
act on the basis that the entitled party would not exercise his or her right. If the 
entitled party then exercises his or her right nonetheless, that act infringes 
Paragraph 242 of the BGB (good faith) on the grounds of the inconsistency 
between the entitled party’s present and previous conduct. 
19 However, there are doubts as to whether those forfeiture rules can be applied to 
the consumer’s right of withdrawal (Question 3(a)). According to Article 14(1), 
second sentence, points (a) and (b), of Directive 2008/48, the 14-day period of 
withdrawal begins either on conclusion of the agreement or on the day on which 
the consumer receives the information in accordance with Article 10 of the 
BMW BANK 
 
9 
directive, whichever is the later. That suggests that withdrawal is not time limited 
if the consumer does not receive the information in accordance with Article 10 of 
Directive 2008/48. Moreover, it follows from Article 14(1), second sentence, 
point (b), of the directive that the creditor is able to trigger the period of 
withdrawal at any time by providing the information in accordance with Article 10 
of the directive. That suggests that the period in which the right of withdrawal can 
be exercised has been regulated definitively and that there is no latitude to limit 
the right of withdrawal in time by relying on a plea of forfeiture. 
20 Should Question 3(a) be answered to the effect that the exercise of the right of 
withdrawal in accordance with Article 14(1), first sentence, of Directive 2008/48 
is subject to forfeiture, the question arises as to whether the national courts have 
the power to limit the right of withdrawal in time via the national forfeiture rules 
or whether this must be regulated by legislation adopted by parliament. 
21 Although the Court of Justice has ruled that the right of withdrawal can be limited 
in time, it emphasised in its judgment of 19 December 2019, Rust-Hackner and 
Others (C-355/18 to C-357/18 and C-479/18, EU:C:2019:1123, paragraph 62) 
that, when limiting the right of withdrawal in time, the effectiveness of the 
directive must be ensured in the light of the aim that it pursues. Accordingly, the 
possibility of limiting the right of withdrawal on the basis of merely general legal 
principles should be precluded. In particular, there is a danger that the facility 
deliberately provided by the directive to enforce the right of withdrawal with no 
limitation in time will be excessively restricted or even rendered completely 
ineffective through extensive application of Paragraph 242 of the BGB. 
22 If Question 3(b) is answered in the negative, clarification is required as to the 
extent to which forfeiture depends on the consumer having been informed of his 
or her right of withdrawal. It is clear from the existing case-law of the Court of 
Justice that forfeiture of the right of withdrawal is possible only after the 
consumer has been sufficiently informed of his or her right of withdrawal (order 
of 27 November 2007, Diy-Mar Insaat Sanayi ve Ticaret and Akar v Commission, 
C-163/07 P, EU:C:2007:717, paragraphs 32, 36). The principle of effectiveness in 
EU law, in particular, also militates in favour of this. This is because the consumer 
can exercise his or her right of withdrawal efficiently only if he or she is aware of 
it in the first place. 
23 If Question 3(c) is answered in the negative, clarification is required as to whether 
the creditor’s facility to provide the consumer subsequently with the information 
required under Article 14(1), second sentence, point (b), of Directive 2008/48 and 
thus make the period of withdrawal begin to run precludes the application of the 
rules of forfeiture in good faith. The referring court takes the view that it is 
evident that, in the case of inadequate provision of the information pursuant to 
Article 10(2) of Directive 2008/48, the possibility of invoking the plea of 
forfeiture can be ruled out from the outset. According to the case-law of the Court 
of Justice, the obligated party cannot validly rely on reasons of legal certainty in 
order to redress a situation caused by his or her own failure to comply with the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-38/21 
 
10  
requirement, under European Union law, to communicate information relating to 
the right of the entitled party to cancel or withdraw from the contract (judgments 
of 19 December 2013, Endress, C-209/12, EU:C:2013:864, paragraph 30, and of 
13 December 2001, Heininger, C-481/99, EU:C:2001:684, paragraph 47). 
24 If Question 3(d) is answered in the negative, it is necessary to examine whether 
that is compatible with the principles by which the German courts are bound 
under the Basic Law and, if so, how German legal practitioners are to resolve a 
conflict between the binding prescripts of international law and the prescripts of 
EU law. 
25 Forfeiture is one of the general principles of international law. Those general 
principles form part of federal law and, according to Article 25(2) of the Basic 
Law, they take precedence over legislation. They are therefore binding on a 
German court. 
26 The possibility of forfeiture is recognised in international law. However, it is 
common ground in literature on international law that the party entitled to exercise 
the right must be aware of his or her right. A right cannot be forfeited merely 
because no action was taken. Consequently, a German court could find that a 
consumer’s right of withdrawal had been forfeited only if the entitled party knew 
that he or she still had a right of withdrawal or was ignorant of that right due to 
gross negligence. 
27 Thus, if the principles applicable under EU law to forfeiture of the consumer’s 
right of withdrawal from a consumer credit agreement diverged from binding 
international prescripts, the Court of Justice would have to clarify, within the 
scope of Directive 2008/48, the legal requirements by which the national court has 
to be guided in such a conflict of rules. 
28 The referring court summarises the relevance of Questions 3(a) to (f) to the 
outcome of the dispute pending before it as follows: if forfeiture of the right of 
withdrawal in accordance with Article 14(1), first sentence, of Directive 2008/48 
- is excluded from the outset, 
- or must, in any event, be established by act of parliament, 
- or must, at the very least, presuppose ignorance due to gross negligence, 
- or is, in any event, precluded by the failure to provide information 
subsequently, 
- or is, in any event, incompatible with binding prescripts of international law, 
provided at the very least that the entitled party is not ignorant due to gross 
negligence, 
the defendant cannot rely upon a plea of forfeiture in this case. 
BMW BANK 
 
11 
29 Questions 4(a) to 4(f) (abuse of rights): In the national case-law and legal 
literature, there are conflicting views on whether and under which conditions an 
exercise of the consumer’s right of withdrawal in consumer credit agreements can 
be qualified as a breach of the principle of good faith and thus as an abuse of 
rights. The interpretation and application of national law therefore depend on how 
Questions 4(a) to 4(f) are to be answered. 
30 It is doubtful whether the exercise of the consumer borrower’s right of withdrawal 
can be limited at all by the assumption of a breach of the principle of good faith. 
The following arguments militate against this: 
• The clear set of rules in the directive leaves no room for limiting the right of 
withdrawal by assuming a breach of the principle of good faith. 
• The creditor can trigger the period of withdrawal at any time by 
subsequently providing the information required under Article 10 of 
Directive 2008/48/EC. 
• The right of withdrawal serves not only to protect the individual, but also to 
pursue overriding goals (preventing over-indebtedness, strengthening 
financial market stability). 
• Directive 2008/48/EC does not allow Member States to impose restrictions 
on the right of withdrawal, in particular a reduction of the period of 
withdrawal. 
31 Should Question 4(a) be answered to the effect that the exercise of the right of 
withdrawal can constitute an abuse of rights, the further question arises as to 
whether the national courts have the power to limit the right of withdrawal in time 
on that ground or whether this must be regulated by legislation adopted by 
parliament. The referring court takes the view that a limitation of the right of 
withdrawal on the basis of merely general legal principles is precluded. 
32 This is because, as is the case with the application of the rules on forfeiture, there 
is a danger that the facility deliberately provided by the directive to enforce the 
right of withdrawal with no limitation in time will be excessively restricted or 
even rendered completely ineffective through extensive application of 
Paragraph 242 of the BGB. If the protection conferred on the creditor as a result of 
having provided all the information contained in the model in accordance with 
Article 247(6), second paragraph, third sentence, and Article 247(12), first 
paragraph, third sentence, of the EGBGB is extended by the courts due to the 
assumption that the absence of that protection has been invoked in a manner that 
constitutes an abuse of rights, this shows that, if exercised later than 14 days after 
the conclusion of the contract, the right of withdrawal may in this way be deprived 
of its practical effect. 
33 If Question 4(b) is answered in the negative, clarification is required as to the 
extent to which the assumption of a breach of the principle of good faith can be 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-38/21 
 
12  
justified in cases where the right of withdrawal is exercised later than 14 days 
after the conclusion of the contract, even if the creditor did not adequately inform 
the consumer of his or her right of withdrawal. 
34 If Question 4(c) is answered in the negative, the question arises as to whether the 
creditor’s facility to provide the consumer subsequently with the information 
required under Article 14(1), second sentence, point (b), of Directive 2008/48 and 
thus make the period of withdrawal begin to run precludes the assumption of a 
breach of the principle of good faith. 
35 If Question 4(d) is answered in the negative, it is necessary to examine whether 
this is compatible with the established principles of international law by which the 
German courts are bound under the Basic Law. The principle of good faith is one 
of the general principles of international law. Those general principles form part 
of federal law and, according to Article 25(2) of the GG, they take precedence 
over legislation. They are therefore binding on a German court. 
36 According to those principles, the beneficiary must be aware of his or her right, 
and only then can the other party attach legal effects to the non-exercise of that 
right. A consumer who is unaware of his or her continuing right of withdrawal, 
without gross negligence on his or her part, cannot be alleged to have breached the 
principle of good faith if he or she does not exercise his or her right of withdrawal 
until some time after the conclusion of the contract and derives from that the legal 
consequences possible under the law. 
37 If the principles applicable under EU law to abuse of the consumer’s right of 
withdrawal diverge from binding international prescripts, the Court of Justice 
would have to clarify, within the scope of Directive 2008/48, how the national 
court has to be guided in such a conflict of rules. 
38 The referring court considers Questions 4(a) to (f) to be material to the decision in 
the present case. The reason for this is that, if the assumption of an abuse of the 
right of withdrawal under Article 14(1), first sentence, of Directive 2008/48 
– is excluded from the outset, 
– or must, in any event, be regulated by an act of parliament, 
– or must, at the very least, presuppose ignorance on the part of the consumer 
due to gross negligence, 
– or is, in any event, precluded by the failure to provide information 
subsequently, 
– or is, in any event, incompatible with binding prescripts of international law, 
provided at the very least that the entitled party is not ignorant due to gross 
negligence, 
BMW BANK 
 
13 
fulfilment of the specific requirements for an infringement of Paragraph 242 of the 
BGB (good faith) and the evaluation and weighing up of those requirements 
would not be relevant in an individual case. 
39 Lastly, it is pointed out that the questions referred in the present request for a 
preliminary ruling overlap in part with the questions in pending Cases C-33/20, 
C-155/20, C-187/20 and C-336/20, for which reason it is suggested that the cases 
be joined.