62020CC0033
OPINION OF ADVOCATE GENERAL
HOGAN
delivered on 15 July 2021 (
1
)
Joined Cases C‑33/20, C‑155/20 and C‑187/20
UK
v
Volkswagen Bank GmbH (C‑33/20)
and
RT,
SV,
BC
v
Volkswagen Bank GmbH,
Skoda Bank, subsidiary of Volkswagen Bank GmbH (C‑155/20)
and
JL,
DT
v
BMW Bank GmbH,
Volkswagen Bank GmbH (C‑187/20)
(Request for a preliminary ruling from the Landgericht Ravensburg (Regional Court, Ravensburg, Germany))
(Reference for a preliminary ruling – Consumer protection – Consumer credit – Directive 2008/48/EC – Article 10(2) – Requirements as to the information to be given in the contract – Rate of interest on arrears – Article 14 – Right of cancellation)
I. Introduction
1.
These references for a preliminary ruling relate essentially to the obligations of credit institutions to provide certain information concerning credit terms to consumers and the consequences in the event of failure to provide such information. All of these references have a broadly similar factual background in that they concern the proper interpretation of Article 10(2)(a), (d), (l), (r), (s) and (t) and Article 14(1) 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 (OJ 2008 L 133, p. 66).
2.
These requests were made by the Landgericht Ravensburg (Regional Court, Ravensburg, Germany) in the context of disputes between various consumers and car loan companies concerning the validity of the withdrawal applications submitted by these consumers. While these applications were all received long after the 14-day period from the date of the signing of the credit agreement provided for in Article 14(1)(a) of Directive 2008/48 had expired, the consumers in question maintain that they are entitled to take this step on the grounds that these agreements did not contain all the information required by Article 10 of that directive. These cases accordingly address the difficult – but nonetheless essential – issue as to the degree of precision of the information contained in the contract required by Article 10, as well as the related issue of how national courts should react when consumers attempt to exploit, to their own advantage, on possibly inadequate information. (
2
) Before considering these questions it is, however, first necessary to set out the relevant legal provisions.
II. Legal framework
A.
EU law
3.
Recitals 4 to 9, 18, 19, 30, 31 and 35 of Directive 2008/48 state:
‘(4)
The de facto and de jure situation resulting from th[e] national differences [between the laws of the various Member States in the field of consumer credit] in some cases leads to distortions of competition among creditors in the Community and creates obstacles to the internal market where Member States have adopted different mandatory provisions more stringent than those provided for in [Council] Directive 87/102/EEC [of 22 December 1986 for the approximation of laws and administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48)]. It restricts consumers’ ability to make direct use of the gradually increasing availability of cross-border credit. Those distortions and restrictions may in turn have consequences in terms of the demand for goods and services.
(5)
In recent years the types of credit offered to and used by consumers have evolved considerably. New credit instruments have appeared, and their use continues to develop. It is therefore necessary to amend existing provisions and to extend their scope, where appropriate.
(6)
In accordance with the Treaty, the internal market comprises an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The development of a more transparent and efficient credit market within the area without internal frontiers is vital in order to promote the development of cross-border activities.
(7)
In order to facilitate the emergence of a well-functioning internal market in consumer credit, it is necessary to make provision for a harmonised Community framework in a number of core areas. In view of the continuously developing market in consumer credit and the increasing mobility of European citizens, forward-looking Community legislation which is able to adapt to future forms of credit and which allows Member States the appropriate degree of flexibility in their implementation should help to establish a modern body of law on consumer credit.
(8)
It is important that the market should offer a sufficient degree of consumer protection to ensure consumer confidence. Thus, it should be possible for the free movement of credit offers to take place under optimum conditions for both those who offer credit and those who require it, with due regard to specific situations in the individual Member States.
(9)
Full harmonisation is necessary in order to ensure that all consumers in the Community enjoy a high and equivalent level of protection of their interests and to create a genuine internal market. Member States should therefore not be allowed to maintain or introduce national provisions other than those laid down in this Directive. However, such restriction should only apply where there are provisions harmonised in this Directive. Where no such harmonised provisions exist, Member States should remain free to maintain or introduce national legislation. Accordingly, Member States may, for instance, maintain or introduce national provisions on joint and several liability of the seller or the service provider and the creditor. Another example of this possibility for Member States could be the maintenance or introduction of national provisions on the cancellation of a contract for the sale of goods or supply of services if the consumer exercises his right of withdrawal from the credit agreement. In this respect Member States, in the case of open-end credit agreements, should be allowed to fix a minimum period needing to elapse between the time when the creditor asks for reimbursement and the day on which the credit has to be reimbursed.
…
(18)
… However, this Directive should contain specific provisions on advertising concerning credit agreements as well as certain items of standard information to be provided to consumers in order to enable them, in particular, to compare different offers. Such information should be given in a clear, concise and prominent way by means of a representative example. …
(19)
In order to enable consumers to make their decisions in full knowledge of the facts, they should receive adequate information, which the consumer may take away and consider, prior to the conclusion of the credit agreement, on the conditions and cost of the credit and on their obligations. To ensure the fullest possible transparency and comparability of offers, such information should, in particular, include the annual percentage rate [APR] of charge applicable to the credit, determined in the same way throughout the Community. …
…
(30)
This Directive does not regulate questions of contract law relating to the validity of credit agreements. In this area, the Member States may therefore maintain or introduce national provisions which are in conformity with Community law. …
(31)
In order to ensure that the consumer is able to know his rights and obligations under the credit agreement, the agreement should contain all the necessary information in a clear and concise manner.
…
(35)
Where a consumer withdraws from a credit agreement in connection with which he has received goods, in particular from a purchase in instalments or from a hiring or leasing agreement providing for an obligation to purchase, this Directive should be without prejudice to any regulation by Member States of questions concerning the return of the goods or any related questions.’
4.
Article 3 of the directive, entitled ‘Definitions’, states:
‘For the purposes of this Directive, the following definitions shall apply:
…
(n)
“linked credit agreement” means a credit agreement where:
(i)
the credit in question serves exclusively to finance an agreement for the supply of specific goods or the provision of a specific service, and
(ii)
those two agreements form, from an objective point of view, a commercial unit; a commercial unit shall be deemed to exist where the supplier or service provider himself finances the credit for the consumer or, if it is financed by a third party, where the creditor uses the services of the supplier or service provider in connection with the conclusion or preparation of the credit agreement, or where the specific goods or the provision of a specific service are explicitly specified in the credit agreement.’
5.
Article 5 of Directive 2008/48, entitled ‘Pre-contractual information’, specifies:
‘1.   In good time before the consumer is bound by any credit agreement or offer, the creditor and, where applicable, the credit intermediary shall, on the basis of the credit terms and conditions offered by the creditor and, if applicable, the preferences expressed and information supplied by the consumer, provide the consumer with the information needed to compare different offers in order to take an informed decision on whether to conclude a credit agreement. Such information, on paper or on another durable medium, shall be provided by means of the Standard European Consumer Credit Information form set out in Annex II. The creditor shall be deemed to have fulfilled the information requirements in this paragraph and in Article 3, paragraphs (1) and (2) of Directive 2002/65/EC [of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC (OJ 2002 L 271, p. 16)] if he has supplied the Standard European Consumer Credit Information.
2.   The information in question shall specify:
…
(l)
the interest rate applicable in the case of late payments and the arrangements for its adjustment, and, where applicable, any charges payable for default;
…’
6.
Article 10 of that directive, entitled ‘Information to be included in credit agreements’, provides:
‘1.   Credit agreements shall be drawn up on paper or on another durable medium.
All contracting parties shall receive a copy of the credit agreement. This article shall be without prejudice to any national rules on the validity of the conclusion of credit agreements which are in conformity with Community law.
2.   The credit agreement shall specify in a clear and concise manner:
…
(l)
the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement and the arrangements for its adjustment and, where applicable, any charges payable for default;
…
(t)
whether or not there is an out-of-court complaint and redress mechanism for the consumer and, if so, the methods for having access to it;
…’
7.
Article 14 of Directive 2008/48, entitled ‘Right of withdrawal’, reads as follows:
‘1.   The consumer shall have a period of 14 calendar days in which to withdraw from the credit agreement without giving any reason.
That period of withdrawal shall begin:
(a)
either from the day of the conclusion of the credit agreement, or
(b)
from the day on which the consumer receives the contractual terms and conditions and information in accordance with Article 10, if that day is later than the date referred to in point (a) of this subparagraph.
…
3.   If the consumer exercises his right of withdrawal, he shall:
…
(b)
pay to the creditor the capital and the interest accrued thereon from the date the credit was drawn down until the date the capital is repaid, without any undue delay and no later than 30 calendar days after the despatch by him to the creditor of notification of the withdrawal. The interest shall be calculated on the basis of the agreed borrowing rate. The creditor shall not be entitled to any other compensation from the consumer in the event of withdrawal, except compensation for any non-returnable charges paid by the creditor to any public administrative body.’
8.
Article 15(1) of the directive, entitled ‘Linked credit agreements’, provides:
‘Where the consumer has exercised a right of withdrawal, based on Community law, concerning a contract for the supply of goods or services, he shall no longer be bound by a linked credit agreement.’
9.
Article 22(1) of Directive 2008/48, entitled ‘Harmonisation and imperative nature of this Directive’, states:
‘In so far as this Directive contains harmonised provisions, Member States may not maintain or introduce, in their national law, provisions other than those laid down in this Directive.’
B.
German law
10.
Paragraph 247(3) to (7) of the Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the Civil Code) of 21 September 1994 (BGBl. 1994 I, p. 2494, and corrigendum BGBl. 1997 I, p. 1061), in the version applicable to the facts of the main proceedings (‘the EGBGB’), entitled ‘Information requirements for consumer loan agreements, paid financial assistance and contracts of sale’, provides:
‘§3   Content of pre-contractual information
(1) The information provided prior to the conclusion of the contract shall include:
…
2. The type of loan,
…
9. The conditions for making funds available,
…
11. The rate of interest on arrears and the manner in which it may be adjusted, as well as, where applicable, the costs of non-performance__
…
§6   Content of the contract
(1) The following information shall be included in the consumer credit agreement in a clear and understandable manner:
1.
the information indicated in paragraph 3, first subparagraph, points 1 to 14, and fourth subparagraph,
…
5.
the procedure to be followed to terminate the contract
…
§7   Other information in the contract
(1) The following information shall be included in the consumer credit agreement in a clear and understandable manner, in so far as it is relevant to the contract:
…
3.
the method of calculating compensation for early repayment, provided that the creditor intends to assert its right to such compensation in the event of early repayment of the loan by the borrower,
4.
the borrower’s access to an out-of-court complaint and redress procedure and, if applicable, the conditions of such access.
…’
11.
Paragraph 247 of the Bürgerliches Gesetzbuch (BGB) (Civil Code), in the version applicable to the facts in the main proceedings (‘the BGB’), entitled ‘Basic interest rate’, provides:
‘(1)   The base interest rate shall be 3.62%. On 1 January and 1 July of each year, it shall be adjusted by the percentage points by which the reference value has increased or decreased since the last adjustment. The reference value corresponds to the interest rate set by the European Central Bank [(ECB)] for the most recent main refinancing operation carried out prior to the first calendar day of the relevant half-year.
(2)   The Deutsche Bundesbank [German Central Bank] shall publish the base interest rate in the Bundesanzeiger [German Official Gazette] immediately after the dates specified in the second sentence of the first subparagraph.’
12.
Paragraph 288 of the BGB, entitled ‘Interest on Arrears and Other Compensation’, provides in subparagraph 1:
‘Any debt of money shall accrue interest during the period of delay. The interest rate for delay shall be five percentage points per annum above the base interest rate.’
13.
Paragraph 355 of the BGB, entitled ‘Right of withdrawal from consumer contracts’, reads as follows:
‘(1)   Where the law gives the consumer a right of withdrawal in accordance with this provision, the consumer and the trader shall cease to be bound by their declarations of intent to conclude the contract, if the consumer has withdrawn his declaration to that effect within the period specified. …
(2)   The withdrawal period is 14 days. Unless otherwise provided, it shall begin at the time of conclusion of the contract.’
14.
Paragraph 356b of the BGB, entitled ‘Right of withdrawal in/for consumer credit agreements’, provides in subparagraph 2 thereof:
‘If the document delivered to the borrower under subparagraph 1 does not contain the mandatory information provided for in Paragraph 492(2), the time limit shall not begin to run until this deficiency is remedied in accordance with Article 492(6). …’
15.
Paragraph 357 of the BGB, entitled ‘Legal consequences of withdrawal from contracts concluded away from business premises and at a distance, with the exception of contracts for financial services’, provides in subparagraph 1 thereof:
‘The benefits received must be returned after 14 days at the latest.’
16.
According to Paragraph 357a(1) of the BGB, entitled ‘Legal Consequences of withdrawal from contracts for financial services’:
‘Benefits received must be returned after 30 days at the latest.’
17.
Paragraph 358 of the BGB, entitled ‘Contract associated with the withdrawn contract’, reads as follows:
‘…
(2)   If the consumer has validly withdrawn his declaration of intent to conclude a consumer credit agreement on the basis of Paragraph 495(1) or Paragraph 514(2), first sentence, he shall also no longer be bound by his declaration of intent to conclude an agreement for the supply of goods or the provision of another service associated with that consumer credit agreement.
(3)   A contract for the supply of goods or other services and a credit agreement pursuant to subparagraphs 1 and 2 shall be combined if the credit serves to finance the other contract in whole or in part and if they both form an economic unit. Such unity must be accepted, in particular, where the professional himself finances the consumer’s counter-performance or, in the case of financing by a third party, where the creditor involves the professional in the preparation or conclusion of the credit agreement.
(4)   Paragraph 355(3) and, depending on the type of associated contract, Paragraphs 357 to 357b, shall apply mutatis mutandis to the rescission of the associated contract, irrespective of the method of marketing …The creditor shall assume in dealings with the consumer the rights and obligations of the trader arising from the associated contract with regard to the legal consequences of withdrawal if, at the time when the withdrawal takes effect, the amount of the loan has already been paid to the trader.’
18.
Paragraph 491a of the BGB, entitled ‘Pre-contractual information obligations in connection with credit agreements concluded with consumers’, provides in its subparagraph 1:
‘In connection with a credit agreement concluded with a consumer, the creditor must inform the borrower of the matters resulting from Paragraph 247 [of the EGBGB] in the form provided therein.’
19.
Paragraph 492 BGB, entitled ‘Written form, content of the contract’, states:
‘(1)   Consumer credit agreements shall be in writing, unless a more stringent form is prescribed. …
(2)   The agreement must contain the information prescribed by Paragraph 247(6) to (13) [of the EGBGB] for credit agreements with consumers.
…
(5)   The information that the creditor must provide to the borrower after the contract is entered into shall be made on a durable medium.’
20.
Paragraph 495 of the BGB, entitled ‘Right of Withdrawal; Cooling-off period’, reads as follows in subparagraph 1:
‘In the context of a credit agreement concluded with a consumer, the borrower has a right of withdrawal in accordance with Paragraph 355 [of the BGB].’
III. The facts of the main proceedings and the request for a preliminary ruling
A.
Case C‑33/20
21.
In December 2015, UK, a consumer, acquired a motor vehicle. In order to finance this acquisition, that consumer made a down payment and entered into a consumer credit agreement with an outstanding balance insurance. The consumer credit agreement contains the following statement:
‘If the agreement is terminated, we shall charge you the statutory interest rate applicable in the case of late payments. The annual interest rate applicable in the case of late payments is five percentage points above the base rate.’
22.
However, that credit agreement does not indicate, in the form of a figure, the rate of interest on arrears applicable, nor does it mention the reference rate used to establish the rate of interest on arrears applicable at the time of the signing of the agreement, namely, the rate referred to in Paragraph 247 of the BGB. In the view of the national court, the wording contained in the credit agreement does not satisfy the obligation on the providers of consumer credit agreements to indicate the mechanism for adjusting the interest rate for late payment.
23.
The referring court states, however, that UK received, prior to the conclusion of that agreement, a document entitled ‘Standard European Consumer Credit Information’, drawn up in accordance with the model set out in Annex II to Directive 2008/48, which states that the basic interest rate is determined by the Deutsche Bundesbank and fixed on 1 January and 1 July of each year respectively. However, the referring court takes the view that that information could not be regarded as forming part of the contract because of the failure on the part of the credit institution concerned to comply with a formal rule laid down in Paragraph 492(1) of the BGB, without further clarification of the scope of the formal rule concerned.
24.
UK made regular monthly payments. However, long after the 14 day period from the conclusion of the contract had expired, but before the loan had been fully repaid, UK sought to withdraw from the agreement in question. He maintained that such a late application for retraction would nevertheless be valid since Volkswagen Bank had not provided him with all the information required by the German legislation transposing Directive 2008/48. Volkswagen Bank refused that withdrawal.
25.
In response, UK filed an action requesting that, in exchange for the return of the purchased vehicle, it should be held that he, qua purchaser, was not obliged to pay the remaining monthly instalments. UK also sought the reimbursement of all of the monthly instalments, including interest, and the deposit already paid to the seller.
26.
The referring court has doubts as to whether the information contained in the contract complies with the requirements of Paragraph 492 of the BGB, read in conjunction with Paragraph 247 of the EGBGB, as interpreted in the light of Directive 2008/48. In those circumstances, the Landgericht Ravensburg (Regional Court. Ravensburg) has decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Is Article 10(2)(l) of Directive [2008/48] to be interpreted as meaning that the credit agreement
(a)
must specify the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement as an absolute number or, at the very least, the current reference interest rate (in this case the base rate in accordance with Paragraph 247 of the [BGB]), from which the interest rate applicable in the case of late payments is obtained by adding a premium (in this case of five percentage points in accordance with Paragraph 288(1), second sentence, of the BGB), as an absolute number; and
(b)
must explain the specific arrangements for adjustment of the interest rate applicable in the case of late payments or, at the very least, must reference the national standards from which such arrangements follow (Paragraph 247 and Paragraph 288(1), second sentence, of the BGB)?
(2)
Is Article 10(2)(r) of Directive [2008/48] to be interpreted as meaning that the credit agreement must specify a particular method that the consumer can understand for calculating the compensation payable in the event of early repayment of the loan, so that the consumer can calculate at least approximately the compensation payable in the event of early termination?
(3)
Is Article 10(2)(s) of Directive 2008/48 to be interpreted as meaning that the credit agreement
(a)
must also specify the parties’ rights of termination of the credit agreement regulated under national law, including in particular the borrower’s right of termination with good cause under Paragraph 314 of the BGB, in the case of fixed-term loan agreements; and
(b)
must indicate the time limit for and form of the declaration of termination prescribed for the purpose of exercising the right of termination for all rights of termination of the parties to the credit agreement?’
B.
Case C‑155/20
27.
On 24 July 2014, 3 January, 2015, and 23 May 2015 respectively, three different consumers, BC, RT, and SV, entered into assigned credit agreements with Volkswagen Bank and Skoda Bank, a branch of Volkswagen Bank, for the purchase of vehicles for private use from automobile dealerships. The facts are similar to those in Case C‑33/20, except that SV and BC withdrew after the loan was fully repaid. In the case of SV, she had already sold the vehicle to the dealer who had originally sold it to her prior to exercising her right of withdrawal. In that context, SV argues that, as a result of exercising her right of withdrawal, she is entitled to be reimbursed the difference between the purchase price, including interest, and the resale price.
28.
As regards the agreements at issue, the referring court states that it considers that the documents entitled ‘Standard European Consumer Credit Information’ provided to RT, SV and BC cannot be regarded, under German law, as forming part of the credit agreement, since those documents do not comply with the formal requirements under Paragraph 492(1) of the BGB as regards pagination.
29.
The referring court also points out that, as regards the conditions under which the creditor may terminate the contract in question with good cause, these contracts do not specify the form in which such termination must take place, nor the period within which the creditor must terminate the contract, and no mention is made of the borrower’s right to terminate the contract in accordance with Paragraph 314 of the BGB.
30.
In those circumstances, the Landgericht Ravensburg (Ravensburg Regional Court, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Is Article 10(2)(l) of Directive [2008/48] to be interpreted as meaning that the credit agreement
(a)
must specify the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement as an absolute number or, at the very least, the current reference interest rate (in this case the base rate in accordance with Paragraph 247 of the [BGB]), from which the interest rate applicable in the case of late payments is obtained by adding a premium (in this case of five percentage points in accordance with Paragraph 288(1), second sentence, of the BGB), as an absolute number?
(b)
must explain the specific arrangements for adjustment of the interest rate applicable in the case of late payments or, at the very least, must reference the national standards from which such arrangements follow (Paragraph 247 and Paragraph 288(1), second sentence, of the BGB)?
(2)
Is Article 10(2)(r) of Directive [2008/48] to be interpreted as meaning that the credit agreement must specify a particular method that the consumer can understand for calculating the compensation payable in the event of early repayment of the loan, so that the consumer can calculate at least approximately the compensation payable in the event of early termination?
(3)
Is Article 10(2)(s) of Directive [2008/48] to be interpreted as meaning
(a)
that the credit agreement must also specify the parties’ rights of termination of the credit agreement regulated under national law, including in particular the borrower’s right of termination with good cause under Paragraph 314 of the BGB, in the case of fixed-term loan agreements?
(b)
(if Question (a) above is answered in the negative) that it does not preclude a national regulation which stipulates the designation of a national special right of termination as mandatory information within the meaning of Article 10(2)(s) of Directive [2008/48]?
(c)
that the credit agreement must indicate the time limit for and form of the declaration of termination prescribed for the purpose of exercising the right of termination for all rights of termination of the parties to the credit agreement?
(4)
In the case of a consumer credit agreement, is the creditor excluded from invoking the plea of forfeiture in respect of the exercising of the right of withdrawal of the consumer in accordance with the first sentence of Article 14(1) of Directive [2008/48]
(a)
if some of the mandatory information required under Article 10(2) of Directive [2008/48] has been neither properly included in the credit agreement nor subsequently duly provided and the period of withdrawal in accordance with Article 14(1) of Directive [2008/48] has therefore not begun?
(b)
(if Question (a) above is answered in the negative) if the forfeiture is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his or her right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer has such knowledge?
(5)
In the case of a consumer credit agreement, is the creditor excluded from invoking the plea of abuse of rights in respect of the exercising of the right of withdrawal of the consumer in accordance with the first sentence of Article 14(1) of Directive [2008/48]
(a)
if some of the mandatory information required under Article 10(2) of Directive [2008/48] has been neither properly included in the credit agreement nor subsequently duly provided and the period of withdrawal pursuant to Article 14(1) of Directive [2008/48] has therefore not begun?
(b)
(if Question (a) above is answered in the negative) if the abuse of rights is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his or her right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer has such knowledge?’
C.
Case C‑187/20
31.
On 4 May 2017, and 23 March 2019, two separate consumers, JL and DT, entered into credit agreements with BMW Bank and Audi Bank (a branch of Volkswagen Bank), respectively, for the purchase of a vehicle for private use. As in the case of UK in Case C‑33/20 and RT in Case C‑155/20, these consumers sought to withdraw from their loan long after 14 days had elapsed since its conclusion, but before it had been fully repaid. Again, seeking to justify the lateness of their request, these consumers argued that the withdrawal period had not started to run because insufficient information had been provided in the contracts at issue.
32.
With regard to the contracts at issue in these two cases, the referring court highlights the following elements.
33.
First, those contracts do not specify the precise nature of the loan. However, in both cases, the Standard European Consumer Credit Information, (
3
) which, under the provisions of German law, is an integral part of the contractual document, states that it concerns an instalment loan with equal monthly instalments and a fixed interest rate. (
4
)
34.
Second, both contracts state that the loan will be disbursed upon delivery of the vehicle to the vendor. However, neither agreement specifies that once the funds have been disbursed, the obligation to pay the sale price to the seller for that amount ceases and that the buyer may demand that the seller deliver the vehicle upon full payment of the sale price.
35.
Third, with regard to the information on default interest rates, the contract concluded by JL states that: ‘If the borrower … defaults on payments, default interest shall be charged at a rate of five percentage points above the relevant base rate per year. The base rate is determined on 1 January and 1 July of each year and is published in the Bundesanzeiger (Federal Gazette) by the Deutsche Bundesbank.’ Regarding DT, the loan agreement contains the following information on the interest rate applicable in the case of late payments: ‘If the agreement is terminated, we shall charge you the statutory interest rate applicable in the case of late payments. The annual interest rate applicable in the case of late payments is five percentage points above the relevant base rate.’ In addition, the Standard European Consumer Credit Information provided to that consumer states the following: ‘The annual interest rate applicable in the case of late payments is five percentage points above the relevant base rate. The base rate is determined by the Deutsche Bundesbank and is set on 1 January and 1 July of each year.’
36.
However, according to the referring court, in both cases, the documents provided do not explain that the base interest rate published by the Deutsche Bundesbank corresponds to the interest rate for the most recent refinancing operation carried out by the ECB, nor do they refer to Paragraph 247(1) of the BGB, which mentions this information.
37.
Fourth, the referring court notes that the documents given to the consumers set out the main parameters that will be taken into account to determine the compensation due in the event of early repayment, but not the exact formula for calculating this compensation.
38.
Fifth, the referring court notes that, although the contracts at issue refer to the existence of a right of termination for the borrower on serious grounds, they contain neither a reference to Paragraph 314 of the BGB nor an indication of the form and time limit for requesting such termination.
39.
Sixth, the referring court notes that the contracts in question state that it is possible for matters to be referred to the Ombudsmann der privaten Banken (German Private Banks’ Ombudsman) for the purpose of resolving disputes with the bank and that the Verfahrensordnung für die Schlichtung von Kundenbeschwerden im deutschen Bankgewerbe (Rules of procedure for the settlement of customer complaints in the German banking industry) governing the handling of such a complaint by that body is available on request or can be viewed on the website of the Bundesverband der Deutschen Banken eV (Association of German Banks), www.bdb.de. These contracts also specify that any complaint must be submitted in writing to the customer complaints office at the Association of German Banks. In the case of the contract signed by DT, it also mentions the fax number and email address to which such complaints may be addressed. However, the referring court points out that the conditions of admissibility relating to the content that complaint must have, as set out in point 3 of the Rules of procedure of that body, are not indicated in that contract.
40.
In those circumstances, the Landgericht Ravensburg (Ravensburg Regional Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Is Article 10(2)(a) of [Directive 2008/48] to be interpreted as meaning that, with regard to the type of credit, it may be necessary to specify that it is a linked credit agreement and/or that it is a fixed-term credit agreement?
(2)
Is Article 10(2)(d) of Directive [2008/48] to be interpreted as meaning that, with regard to the conditions governing the drawdown of the credit in the case of linked credit agreements for financing the purchase of an item, it is necessary to specify, in the event that the credit amount is disbursed to the seller, that the borrower is released from his or her liability to pay the purchase price to the extent of the amount disbursed and that the seller must hand over the purchased item to him or her if the purchase price has been paid in full?
(3)
Is Article 10(2)(l) of Directive [2008/48] to be interpreted as meaning that the credit agreement
(a)
must specify the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement as an absolute number or, at the very least, the current reference interest rate (in this case, the base rate in accordance with Paragraph 247 of 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), as an absolute number; and
(b)
must explain the specific arrangements for adjustment of the interest rate applicable in the case of late payments or, at the very least, must reference the national standards from which such arrangements follow (Paragraph 247 and Paragraph 288(1), second sentence, of the BGB)?
(4)
(a)
Is Article 10(2)(r) of Directive [2008/48] to be interpreted as meaning that the credit agreement must specify a particular method that the consumer can understand for calculating the compensation payable in the event of early repayment of the loan, so that the consumer can calculate at least approximately the compensation payable in the event of early termination?
(b)
(if Question (a) above is answered in the affirmative):
Do Article 10(2)(r) and the second sentence of Article 14(1) of Directive [2008/48] preclude national legislation pursuant to which, in the case of incomplete information within the meaning of Article 10(2)(r) of that directive, the period for withdrawal nevertheless commences on conclusion of the agreement and only the creditor’s right to compensation for early repayment of the credit is lost?
(5)
Is Article 10(2)(s) of Directive [2008/48] to be interpreted as meaning
(a)
that the credit agreement must also specify the rights of termination of the parties to the credit agreement regulated under national law, including in particular the borrower’s right of termination with good cause under Paragraph 314 of the BGB, in the case of fixed-term loan agreements, and that express reference must be made to the paragraph in which that right of termination is regulated?
(b)
(if Question (a) above is answered in the negative):
that it does not preclude national legislation which stipulates the designation of a national special right of termination as mandatory information within the meaning of Article 10(2)(s) of Directive [2008/48]?
(c)
that the credit agreement must indicate the time limit for and form of the declaration of termination prescribed for the purpose of exercising the right of termination for all rights of termination of the parties to the credit agreement?
(6)
Is Article 10(2)(t) of Directive [2008/48] to be interpreted as meaning that the essential formal requirements for a complaint and/or redress in the out-of-court complaint and/or redress procedure must be specified in the credit agreement? Is it insufficient in this respect if reference is made to rules of procedure, which can be accessed on the internet, for out-of-court complaint and/or redress procedures?
(7)
In the case of a consumer credit agreement, is the creditor precluded from invoking the plea of forfeiture in respect of the exercise of the right of withdrawal of the consumer pursuant to the first sentence of Article 14(1) of Directive (2008/48)
(a)
if some of the mandatory information required under Article 10(2) of Directive [2008/48] has been neither properly included in the credit agreement nor subsequently duly provided and the period of withdrawal pursuant to Article 14(1) of Directive [2008/48] has therefore not begun?
(b)
(if Question (a) above is answered in the negative):
if the forfeiture is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his or her right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer has such knowledge?
(8)
In the case of a consumer credit agreement, is the creditor precluded from invoking the plea of abuse of rights in respect of the exercise of the right of withdrawal of the consumer in accordance with the first sentence of Article 14(1) of Directive [2008/48]
(a)
if some of the mandatory information required under Article 10(2) of Directive [2008/48] has been neither properly included in the credit agreement nor subsequently duly provided and the period of withdrawal pursuant to Article 14(1) of Directive [2008/48] has therefore not begun?
(b)
(if Question (a) above is answered in the negative):
if the abuse of rights is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his or her right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer has such knowledge?’
IV. Analysis
41.
In line with the Court’s request, I propose to limit my Opinion to the following questions:
–
the first question in Case C‑33/20, the first question in Case C‑155/20 and the third question in Case C‑187/20;
–
the sixth question in Case C‑187/20;
–
the fourth question in Case C‑155/20 and the seventh question in Case C‑187/20;
–
the fifth question in Case C‑155/20 and the eighth question in Case C‑187/20.
A.
Preliminary remarks
42.
As a preliminary point, it should be recalled, first, that a directive cannot in itself create obligations for an individual and cannot therefore be relied on as such against individuals. It is true that, in order to ensure that they enjoy legal protection under the provisions of EU law, the national courts called upon to interpret their national law are required to interpret it, as far as possible, in the light of the text and the purpose of the directive in question in order to achieve the result laid down by that directive. (
5
) However, this obligation of interpretation in conformity with EU law is limited by the general principles of law, in particular, by the principle of legal certainty, in that it may not serve as a basis for an interpretation of national law which would be contra legem. (
6
) Consequently, the answers to the questions referred by the referring court may be relied on by the claimants against their respective credit institutions only if, by application of the recognised methods of interpretation, the national legislation transposing Directive 2008/48 can be interpreted in accordance with those answers. It is for the referring court to determine whether that is the case.
43.
Secondly, I would like to emphasise that I do not consider that the Court’s case-law to date with regard to information requirements laid down by other EU legislative measures designed to protect consumer rights can necessarily be transposed simply by analogy to Directive 2008/48. Indeed, in accordance with the methods of interpretation recognised by the Court, such solutions can really only be transposed if the wording, the context and the objectives of the legislative provisions in question are identical or, at least, very nearly so. In this case, particular attention must be paid, in my opinion, to the fact that Directive 2008/48 prescribes more extensive information requirements than those contained, for example, in Directive 93/13/EEC. (
7
)
44.
Thirdly, regarding the objectives pursued by Directive 2008/48, it follows from recitals 4 to 9 of that directive that it aims at facilitating the emergence of an effective internal market in consumer credit by harmonising the information requirements which creditors are required to provide, while ensuring that this market inspires consumers with confidence by offering them a high and equivalent level of protection. (
8
)
45.
Information requirements contained in Directive 2008/48 are therefore based in part, on the premiss that a certain degree of contractual standardisation, at least with regard to the information to be included in the contracts, is necessary to achieve such an objective and, in part, that the consumer is in an inferior position vis-à-vis the creditor as regards information on the effects of the contract and the applicable legislation. (
9
) In order to achieve those objectives, Directive 2008/48 harmonises fully the information obligations that may be imposed on creditors (
10
) and to this end establishes a distinction between the information that must be communicated by creditors in their advertisements (Article 4), at the pre-contractual stage (Article 5), and in the contracts themselves (Article 10). (
11
)
46.
Since Directive 2008/48 provides for information obligations at different stages, these obligations, although related, pursue objectives which are slightly different. In particular, it follows from recitals 18 and 19 of that directive that the obligation to provide consumers with certain information at the pre-contractual stage – which is provided for in Article 5 thereof – aims in the first place to enable them to compare the different offers received and then to choose the most appropriate one. As for the obligation to provide consumers with certain information at the contractual stage, set out in Article 10 of Directive 2008/48, it is clear from recital 31 thereof that it aims at enabling consumers to be aware of their rights and obligations under the contract. (
12
) More precisely, as the Court has held, that provision is intended to ensure that consumers have all the information necessary for the proper performance of the contract and, in particular, to that end, for the exercise of their rights. (
13
)
47.
In so far as certain items of information referred to in Article 10 of Directive 2008/48 must previously have been communicated to the consumer at the pre-contractual stage, while others relate not to the content of the contract, but the legislation applicable to it, it is clear that the EU legislature intended to achieve the objective of allowing consumers to know their rights and obligations arising from the contract by ensuring that, in the event of difficulties, the consumer can refer to that contract to find the answer to their question, without having to bear the cost of searching for the relevant information. (
14
)
48.
Finally, it should be noted that since Directive 2008/48 aims in particular at facilitating the emergence of an effective internal market in consumer credit and, to that end, brings about complete harmonisation of information requirements, irrespective of the solutions that the Court proposes to adopt in the present cases, those solutions must be as precise as possible. It is only on this condition that the legal certainty for European operators, which is necessary for the emergence of such a market, would be effective.
49.
I propose now to answer the questions posed in the light of these considerations.
B.
On the first question in Case C‑33/20, the first question in Case C‑155/20 and the third question in Case C‑187/20
50.
By its first question in Case C‑33/20, its first question in Case C‑155/20 and its third question in Case C‑187/20, the referring court is asking, in substance, whether Article 10(2)(l) of Directive 2008/48 must be interpreted as meaning that the credit agreement must, first, state the default interest rate applicable at the time of its conclusion in the form of a ‘specific figure’ and, second, describe, in a concrete manner, the mechanism for adjusting that rate.
51.
With regard to the first part of the question, from the outset, it must be recalled, according to the Court’s case-law, that any information obligations set out in Directive 2008/48 cannot be satisfied by a mere reference in a contract to a legislative or regulatory text. (
15
)
52.
The German-language version, of Article 10(2)(l) of Directive 2008/48 provides that consumer credit agreements must state ‘der Satz der Verzugszinsen gemäß der zum Zeitpunkt des Abschlusses des Kreditvertrags geltenden Regelung und die Art und Weise seiner etwaigen Anpassung sowie gegebenenfalls anfallende Verzugskosten’, where the use of the term ‘Regelung’ might create a certain ambiguity. Indeed, that term might refer to the terms of the contract or to the legislative rules in force at the time of the conclusion of the contract, which would mean that to comply with those legislative rules, it is necessary to reproduce in the contract the content of the applicable legislation. In this scenario, which is the one supported by the German Government, it would only be if the legislative provision cites the applicable interest rate as an absolute value that that figure would have to be mentioned.
53.
In this regard, I recognise that Article 10(2)(l) of Directive 2008/48 is far from explicit. It seems to me, however, that the wording, the context and the objectives of that provision all lean more in favour of interpreting that provision as requiring an indication of the actual figure corresponding to the rate applicable on the day the contract is signed. I take this view for the following reasons.
54.
It may be observed first that the wording of Article 10(2)(l) of Directive 2008/48 itself states that the information required by that article concerns an interest rate. According to the definition generally given to this term, the latter refers to a percentage, that is to say, a fraction of one hundred. (
16
) As a matter of fact, the formula, benchmark or reference index used to calculate a rate, is not the rate itself. (
17
) One might add that where the German-language version of Directive 2008/48 refers to the legislative rules in force at the time of the conclusion of the contract it uses more explicit terms, such as in Article 14(2) (‘das… geltende innerstaatliche Recht’) and, in Article 14(6) or in Article 15(2) (‘nach den geltende Rechtsvorschriften’).
55.
More importantly, in the English version, Article 10(2)(l) of Directive 2008/48 refers to ‘the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement and the arrangements for its adjustment’. Similarly, the French version mentions ‘le taux d’intérêt applicable en cas de retard de paiement applicable au moment de la conclusion du contrat de crédit et les modalités d’adaptation de ce taux’.
56.
In my opinion, the fact that this provision mentions clearly, in at least in some other language versions that, on the one hand, the interest rate to be specified must be the one applicable ‘at the time of the conclusion of the credit agreement’ and, on the other hand, that this information must be given in addition to that regarding the terms and conditions for adjusting this rate, demonstrate that the term ‘interest rate’ must be understood as referring not to the definition of that rate or the calculation formula used for that purpose, but rather to the percentage corresponding to the rate applicable on the day the contract is signed. Indeed, the definition of the rate or the calculation formula used (in the cases at issue, X+5, where X is equal to the value of the German base interest) will not change without the contract being amended.
57.
If, therefore, the concept of ‘interest rate’ were to be understood as referring to the calculation formula used, it would not have been necessary to specify that this rate had to be the one applicable on the date the contract was concluded, or to require in addition an indication of the arrangements for its adjustment. In particular, regarding this second type of information, whether the concept of ‘interest rate’ should be understood as referring to the definition or calculation formula used, the arrangement for adjusting it would already be contained in the definition of the rate or in its calculation formula, in the form of a variable or, as in this case, of a reference to a benchmark. (
18
)
58.
Certainly, as certain parties have emphasised, some interest rates – such as those at issue in the main proceedings – are likely to vary, but in my view that argument rather supports the above conclusion. In particular, it may explain why Article 10(2)(l) of Directive 2008/48 specifies not only that the rate to be indicated must be the one applicable at the time of the conclusion of the contract, but also that it is necessary to indicate the arrangements for the adjustment of that rate.
59.
Consequently, the wording of Article 10(2)(l) of Directive 2008/48 already tends to show that this provision should be interpreted as obliging the creditor to state in particular the rate that would actually be applied if the borrower defaults on payment at the time the contract is concluded.
60.
This conclusion is confirmed by the objectives and general scheme of this directive.
61.
First, I note that each time Article 3 of Directive 2008/48 gives a definition of a rate, that provision states that this rate must be expressed in the form of a percentage. In my opinion, those clarifications do not constitute exceptions to the usual definition of the concept of ‘rate’, as the German Government maintains, but rather a reminder of the fact that the purpose of these definitions is to specify how this percentage must, according to the nature of each rate in question, be calculated. (
19
)
62.
In that context, it seems to me, with regard to the definition of the concept of ‘rate’, that if the legislature had intended to oblige creditors not to indicate the actual percentage corresponding to the interest rate applicable at the time of the conclusion of the contract, but rather the formula to be used for its calculation, it would presumably have taken the trouble to specify this.
63.
Secondly, regarding the objectives pursued by Article 10(2)(l) of Directive 2008/48, I note that this provision is designed to enable European consumers to know their rights and obligations. From this point of view, one may acknowledge – as some parties have pointed out – that from the point of view of the performance of the contract, an indication of the rate actually applicable on the day of the conclusion of the contract, considered in isolation, is of little interest, because it is very likely that it will change afterwards.
64.
However, it is hardly disputable that requiring to mention the percentage corresponding to the applicable interest rate for late payment at the time the contract is concluded helps consumers to be aware of the consequences of a default in payment (
20
) and this seems to me to be more meaningful than the use of a calculation formula or an abstract reference to a benchmark or reference rate. Moreover, this is not the only information required by Article 10(2)(l) of Directive 2008/48. In particular, the problem of updating this information is specifically covered by the fact that this provision also requires an indication of the arrangements for its adjustment. Accordingly, it cannot be considered that the mention of this percentage would be insufficient to allow EU consumers to understand the consequences likely to result for them from a payment default.
65.
Finally, one may observe that the obligation to indicate the interest rate applicable in the event of late payment is not only included among the information to be provided in the contract, but is also among the information to be provided at the pre-contractual stage, in accordance with Article 5 of Directive 2008/48. Consequently, the concept of ‘interest rate applicable in the event of late payments’ must be interpreted in such a way as to satisfy the objectives pursued by both Article 10(2)(l) of Directive 2008/48 and Article 5(1)(l) of that directive.
66.
From that perspective, as regards the objective pursued by the pre-contractual information requirements set out in Article 5(1) of Directive 2008/48, it is apparent from recital 18 of that directive that those objectives are, inter alia, to instil confidence in consumers, by providing for ‘specific provisions on advertising concerning credit agreements as well as certain items of standard information to be provided to consumers in order to enable them, in particular, to compare different offers. Such information should be given in a clear, concise and prominent way by means of a representative example.’ (
21
)
67.
In this regard, it should be noted that, according to settled case-law, the provisions of EU consumer law must be interpreted by reference to the situation not of the applicants in the cases at issue, but by reference to an average consumer who is reasonably well informed and reasonably observant and circumspect. (
22
) Here, it is clear from recital 6 of Directive 2008/48, that that directive pursues as an objective the development of a more transparent and efficient credit market within the area without internal frontiers. Since, moreover, the legal basis chosen for its adoption was Article 95 EC (now Article 114 TFEU) – which can only justify the adoption of harmonisation measures if they are aimed at improving the conditions for the functioning of the internal market (
23
) – one may infer that the comparability of offers that Article 5 of Directive 2008/48 aims to facilitate is to be understood by reference to the situation, not of a national consumer, but rather that of a European consumer. (
24
)
68.
In any case, it must of course be acknowledged that the average consumer lacks the expertise of the financial specialist. It is thus fair to assume that the average consumer, who moreover might reside in another Member State, cannot easily understand – and therefore compare – the different rates of interest in respect of arrears that may apply if the only information provided to him or her is the calculation formula used to determine this rate at a given moment, in particular when such a formula involves a national rate, benchmark or reference index. In my opinion, it is precisely in order to give the European consumer a point of comparison that Directive 2008/48 provides that every consumer loan contract must indicate the applicable interest rate and not simply the method of calculating or adjusting that rate.
69.
In these circumstances, although the directive might with advantage have been more explicit on the point, I believe, in the light especially of the wording of Article 10(2)(l) of Directive 2008/48, that the obligation to specify the ‘interest rate applicable in the case of late payments’ is to be understood as requiring contracts to indicate the percentage corresponding to the interest rate that would be applied if the borrower defaults on payment at the time the contract is signed. (
25
)
70.
With regard to the second part of the question concerning the arrangements for adjusting the interest rate for late payment, it is clear from the wording of Article 10(2)(l) of Directive 2008/48 that these arrangements must also be specified in the credit agreement.
71.
In the light of the explanations given in the references for a preliminary ruling, the questions put by the referring court should, I think, be understood as relating to the degree of precision of the information concerning this issue which must be set out in the contract. Perhaps more specifically, the question relates to whether the credit institution must indicate, when the interest rate is based on a reference rate, by whom, when and according to what criteria that rate is determined.
72.
In that regard, it should be observed that, according to the Court’s case-law, a creditor cannot fulfil the information requirements set out in Article 10(2) of Directive 2008/48 by providing that the contract should simply refer to the applicable legislative provisions. (
26
) However, I do not think that Article 10(2)(l) of that directive should be interpreted as requiring the creditor to explain, where a reference rate is used to calculate an interest rate, how that reference rate is to be adjusted, or even, where that is the case, as in this instance, that the reference rate used corresponds to a rate published by the ECB.
73.
I reach this conclusion for the following reasons.
74.
First, if an interest rate is calculated on the basis of a formula containing a variable, the use of that variable will be the way, or one of the ways, in which the interest rate can be adjusted. If, as in the cases at issue, there is no other way of adjusting the rate, it is thus sufficient, in order to satisfy the requirements of Article 10(2)(l) of Directive 2008/48, that the contract should state that formula for calculating the applicable rate and, if the variable is a reference rate, who the issuer of that rate is, where it is published and the frequency with which it is published.
75.
Secondly, I note that subsequent to the facts at issue in the present cases, Article 5(1) of Directive 2008/48 was amended to specify that where a consumer credit agreement refers to a benchmark rate within the meaning of Article 3(1)(3) of Regulation (EU) 2016/1011, (
27
) the creditor or where applicable, the credit intermediary, must inform the borrower of the name of the benchmark rate and of its administrator and the potential implications for the consumer (which implies, in my view, specifying the frequency with which that index is published). (
28
) However, it is not expected that the creditor explain how that benchmark is itself established.
76.
Finally, detailing the manner in which the reference rate is established does not appear necessary to achieve the objectives pursued by Articles 5 and 10 of the directive, but it could even be contrary to them. Indeed, since this is a reference rate published by a central bank, it may depend, in part, on macroeconomic data and, in part, on monetary policy considerations (including, in particular, issues of price stability and inflation). Any attempt to explain the manner in which this rate is adjusted would involve a disproportionate effort on the part of the creditor in comparison with the other information referred to in Article 10(2) of Directive 2008/48. The amount of such information might itself present the risk of overwhelming the consumer with an extensive range of financial and economic information and data. (
29
) Such an obligation could be very burdensome so far as the creditor is concerned and it is doubtful whether, in the absence of very clear language to the contrary, such an obligation was ever contemplated by the EU legislature.
77.
In the present case, the clauses at issue in the main proceedings specify that the reference rate used in the formula for calculating the interest rate for late payment is published by the German Central Bank and that that rate is fixed on 1 January and 1 July of each year respectively. Since this is an official rate, freely available on the website of the German Central Bank, I consider that this indication is sufficient to enable the average European consumer – who, one must assume, is reasonably well informed and attentive – to understand by whom, where, and when this rate is published.
78.
Admittedly, these contractual references do not specify that the reference rate used corresponds to a rate published by the ECB. However, nothing in the wording of Article 5 or Article 10 of Directive 2008/48 suggests that such an indication is required. I do not, moreover, see in what way this information would be necessary for the comparability of offers, nor in what way it would help the consumer to know his or her rights and obligations. What matters to the consumer, is that he or she understands the consequences of the contract (
30
) and from this point of view, it is enough, in my opinion, to know that the rate applied is a legally valid rate and where it can be found.
79.
In the light of the foregoing, I propose that the Court should answer the first question in Case C‑33/20, the first question in Case C‑155/20 and the third question in Case C‑187/20, that Article 10(2)(l) of Directive 2008/48 must be interpreted as meaning that the credit agreement must state, first, the rate of default interest applicable at the time the credit agreement is concluded in the form of a percentage, and, secondly, when that rate might vary, the calculation formula which will be used in due course to calculate the applicable rate and in the event of recourse, as a variable, to a reference rate or benchmark, the date of publication, as well as where and by whom it was published.
C.
The sixth question in Case C‑187/20
80.
By its sixth question in Case C‑187/20, the referring court seeks, in essence, to ascertain whether Article 10(2)(t) of Directive 2008/48 must be interpreted as meaning that the credit agreement must specify the essential formal requirements for initiating an out-of-court complaint or redress procedure or whether it is sufficient for the agreement merely to refer in that regard to rules of procedure which are available on the internet.
81.
One might initially observe that by virtue of Article 10(2)(t) of Directive 2008/48 consumer credit agreements must state ‘whether or not there is an out-of-court complaint and redress mechanism for the consumer and, if so, the methods for having access to it’. Accordingly, in order to answer this question, it is necessary to determine what this provision means by ‘methods for having access [to] out-of-court complaint and redress mechanisms’.
82.
According to the Court’s settled case-law, where provisions of EU law do not refer to the law of the Member States for the purpose of determining their meaning and scope, they must be given an autonomous and uniform interpretation throughout the European Union. Such interpretation must take into account not only the wording of those provisions but also their context and the objective pursued by the legislation in question. (
31
) Since Directive 2008/48 does not refer to the law of the Member States for the purpose of determining the meaning of the term methods for having access to out-of-court complaint and redress mechanisms, it must be considered as an autonomous concept of EU law and, consequently, be interpreted in a uniform manner throughout the European Union.
83.
In this regard, I note, on the one hand, that the methods of access required under Article 10(2)(t) of Directive 2008/48 to be indicated in the contract are those relating to ‘out-of-court complaint and redress mechanism[s]’, which not only include internal complaints procedures, but also procedures which may be conducted before a separate entity. (
32
) On the other hand, as appears to be the case with the complaints procedure before the German Private Banks’ Ombudsman, the out-of-court complaint and redress mechanism covered by Article 10(2)(t) of Directive 2008/48 may be subject to particular conditions of admissibility and, moreover, may be changed by the entity in charge.
84.
Contrary, however, to what some parties have contended, those facts alone cannot justify the interpretation of Article 10(2)(t) of Directive 2008/48 as meaning that a contract could simply refer to a website on those matters on the ground, in substance, that it would be otherwise impossible to manage possible changes in the applicable rules of procedure. Admittedly, requiring creditors to include in the contract information other than the address of a website dedicated to these procedures will necessarily mean that, in the event of a change in the list of out-of-court complaint or redress procedures available or in the arrangements for bringing cases before one of the competent bodies, the content of the contract will have to be updated. It would indeed be contrary to the objectives of Directive 2008/48 to interpret Article 10 thereof as not requiring the creditor to carry out such an update, since, as I have explained, the items of information referred to in this provision are those which have been considered by the EU legislature as being likely to be essential during the performance of the contract. (
33
)
85.
However, such an updating obligation does not constitute an unreasonable burden for creditors. On the one hand, the development of contract management tools over the last 20 years has made it much simpler and less expensive for creditor to monitor contracts. On the other hand, the implementation of such an update does not present any legal difficulty. Indeed, a clause that merely mentions the existence or not of out-of-court complaint and redress procedures available to the consumer, as well as the methods of accessing them, has an informative rather than a normative value since it does not determine the extent of the parties’ rights and obligations. Consequently, updating this information does not constitute a modification of the contract to which, for example, the consumer could object.
86.
In any case, one may observe that Article 10(1) of Directive 2008/48 requires that consumers receive a copy of the credit agreement. The use of the word ‘receive’ implies that the consumer does not have to access an internet link or to take any action to access the terms of the contract. (
34
) Moreover, the Court has already ruled that creditors cannot comply with an obligation to provide information under Article 10 of Directive 2008/48 by simply mentioning in the contract where this information can be found. (
35
)
87.
To the extent that the referring court seems to be already aware of this, I consider that the questions raised by the referring court are to be understood as concerning more specifically the question of what Article 10(2)(t) of Directive 2008/48 means by ‘methods of access’ and, again, what degree of precision is to be expected of the information contained in the contract in that regard.
88.
In that regard, it should again be recalled that, according to a settled case-law, when interpreting a provision of EU law, account must be taken of both the wording and the objective of that provision and the context of the legislation of which it forms part. (
36
)
89.
In so far as the wording of Article 10(2)(t) of Directive 2008/48, is concerned, one may infer from the terms chosen by the legislature, namely in German, those of ‘die Voraussetzungen für diesen Zugang’ (in English, ‘methods for having access’ or in French, ‘modalités d’accès à ces dernières’ (
37
)), that the information to be provided to consumers implies something other than the mere mention of the various existing procedures. However, I also note that these same terms refer only to ‘access’ to these procedures and not to their operation. They do not imply a level of precision such that the creditor would have to reproduce in extenso all the applicable procedural rules in any contractual documents supplied to the consumer.
90.
In my opinion, this appears to be confirmed by the context in which this provision is set out, in so far as the beginning of Article 10(2) of Directive 2008/48 specifies that the information must be mentioned in a clear and concise manner, which implies that only the essential information must be mentioned.
91.
Finally, as regards the objective pursued by Article 10(2)(t) of Directive 2008/48, I note that the existence of ‘out-of-court complaint and redress mechanism for the consumer and, if so, the methods for having access to it’ are not among the items of information which Article 5 of Directive 2008/48 requires to be provided to consumers at the pre-contractual stage. It seems evident from this that the EU legislature considered this information to be essential not for the comparison of offers, but rather for the resolution of problems that may arise during the performance of the contract. (
38
) The aim pursued by that provision is accordingly to encourage the consumer to make use of these procedures. All of this implies, in my view, that the information provided is sufficient to avoid any disappointment in this respect.
92.
One may therefore conclude that the information on the methods of access to any applicable out-of-court complaint or redress procedures which must be included in the contract under Article 10(2)(t) of Directive 2008/48 is limited to that which is necessary to ensure that the borrower can decide, in full knowledge of the facts, whether it is appropriate for him or her to have recourse to one of those procedures and, secondly, so that he or she can lodge such a complaint or appeal without fearing that he or she will be permanently deprived of the possibility of asserting his or her rights.
93.
This last aspect seems to me to be all the more important since Article 10(2)(t) of Directive 2008/48 refers to any out-of-court complaint or redress procedure, irrespective of whether it is optional or mandatory. However, I consider that such an objective does not imply detailing the applicable procedural rules, including admissibility, as long as failure to comply with them does not definitively deprive the consumer of the possibility of asserting his or her rights.
94.
More specifically, all of this implies that the consumer credit contract should mention the following points:
–
all out-of-court claims or redress procedures available to the consumer (not just those that would implicitly be preferred by the creditor ), with the exception of ad hoc procedures;
–
if applicable, their cost (and, if so, the need for representation); (
39
)
–
whether the complaint or appeal is to be submitted on paper or electronically;
–
the physical or electronic address to which such claim or appeal should be sent;
–
the formal conditions which must be complied with, but only if their non-observance is likely to lead to the definitive rejection of the request, without possibility of regularisation.
95.
This conclusion is not called into question, in my view, by Directive 2013/11. Admittedly, the latter only provides in Article 13(2) that traders, whoever they may be, must indicate on their website, where one exists, and, if applicable, in the general terms and conditions of sales or service contracts between the trader and a consumer, the main alternative dispute resolution (ADR) entity or ADR entities by which those traders are covered, when those traders commit to or are obliged to use those entities to resolve disputes with consumers, as well as the address of their website. However, Article 3(1) of that directive states that the provisions of that directive shall prevail only if any provision of that directive conflicts with a provision laid down in another EU legal act and relating to out-of-court redress procedures initiated by a consumer against a trader. Given that Directive 2013/11 operates a minimum harmonisation, (
40
) for it to be in conflict with another directive, Directive 2013/11 must lay down a higher standard than this other directive. (
41
) Here, since Directive 2008/48 clearly lays down higher information requirements than Directive 2013/11 – and not the other way round – (
42
) there is no reason to give precedence to the duty to provide information provided for in Article 13(2) of Directive 2013/11 over the requirements of Article 10(2)(t) of Directive 2008/48. (
43
)
96.
In the main proceedings in Case C‑187/20, the consumer credit agreements at issue mention the possibility of initiating a complaint procedure before the Private Banks’ Ombudsman. They also state that the procedural rules for handling customer complaints in the German banking sector are available on request or can be consulted on the internet and that complaints must be sent in writing to the specified address.
97.
In my view, these indications must be considered sufficient to satisfy the requirements of Article 10(2)(t) of Directive 2008/48, provided that, first, there are no other out-of-court complaint or redress procedures applicable to this type of contract, second, the complaint procedure before the Private Banks’ Ombudsman is free of charge and does not require legal representation, and, third, there are no other formal requirements for bringing a complaint before this body other than the sending of that complaint in written form to the address indicated, failure to comply with which could definitively bar the claimant from access to this particular procedure.
98.
In the light of the above, I would propose that the Court should answer the sixth question in Case C‑187/20 that Article 10(2)(t) of Directive 2008/48 must be interpreted as meaning that the credit agreement must list all available out-of-court claims or redress procedures available to the consumers, and if applicable, the cost of these procedures, whether the complaint or appeal is to be submitted on paper or electronically, the physical or electronic address to which such claim or appeal should be sent and the formal conditions to be respected when their non-observance might to lead to the loss of any possibility for the consumer to assert his or her rights.
D.
The fourth question in Case C‑155/20 and the seventh question in Case C‑187/20
99.
By its fourth question in Case C‑155/20 and its seventh question in Case C‑187/20, the referring court asks, in essence, whether Article 14(1) of Directive 2008/48 must be interpreted as meaning that the creditor may raise a plea of foreclosure where the consumer exercises his or her right of withdrawal long after the period of 14 days laid down in Article 14(1)(a) has elapsed since the conclusion of the contract, owing to the failure to provide, in the contract or subsequently, any of the information referred to in Article 10(2) of that directive. The referring court also seeks to ascertain whether, if the answer to that question is in the affirmative, the fact that the borrower did not know that his or her right of withdrawal continued to run beyond the 14-day period laid down in Article 14(1) of Directive 2008/48 is capable of precluding the application of such a plea of foreclosure.
100.
The starting point here is the wording of Article 14(1) of Directive 2008/48 which provides that ‘the consumer shall have a period of 14 calendar days in which to withdraw from the credit agreement without giving any reason’. According to the second sentence of this provision, this period runs either, as mentioned in (a), from the day of the conclusion of the credit agreement, or, as specified in (b) from the day on which the consumer ‘receives the contractual terms and conditions and information in accordance with Article 10, if that day is later’.
101.
Contrary to what the Commission contends, the question of the existence of a possible time limit is not left to the discretion of the Member States, but rather falls within the areas harmonised by Directive 2008/48. I believe, indeed, that if Member States were allowed to determine the length of such a period in their own national law, they could undermine the harmonisation effected by Article 14(1)(a) by relying on the provisions of Article 14(1)(b) in respect of the period for exercising the right of withdrawal. It seems clear that by omitting to attach a time limit to this rule, the EU legislature deliberately intended to allow consumers to withdraw as long as they have not received all the information, regardless of the nature (and therefore the economic relevance) of the information omitted.
102.
In those circumstances, the absence of a time limit is precisely the very outcome that the EU legislature has intended to achieve in order to sanction those creditors who fail to comply with their obligations to provide information under Article 10 of that directive. It is, therefore, an additional sanction to that which must be provided for by the Member States under Article 23 thereof, but for which they have no discretion.
103.
In those circumstances, the fact that creditors cannot rely on a time limit must be regarded as constituting one aspect of the laws, regulations and administrative provisions of the Member States relating to consumer credit agreements which must be regarded as falling within the scope of the full harmonisation effected by that directive.
104.
This is simply another way of saying that it seems necessarily implicit in this legislative scheme that a creditor cannot point to the consumer’s actual state of awareness as a means of justifying its own failure to comply with the information requirements stipulated by Article 10 of that directive.
105.
This is all the more so since, if one compares the provisions of this directive and those of other directives providing for a right of withdrawal for consumers, it will be seen that when the EU legislature has intended to allow a professional trader to rely on a time limit, it has expressly mentioned this, as is the case, for example, in Article 10(1) of Directive 2011/83/EU. (
44
) Although that directive is subsequent to Directive 2008/48, it was the EU legislature’s choice not to amend Directive 2008/48 in order to adopt a similar solution.
106.
That being said, I note that Article 14(1) of Directive 2008/48 establishes a right of withdrawal and not a right of cancellation. (
45
) Since performance of a contract is the natural way in which a contractual obligation of this kind is terminated, I would therefore conclude that Article 14(1) of that directive must be interpreted as meaning that the right of withdrawal which that provision sets out can no longer be exercised once the credit agreement has been fully performed by both the parties.
107.
That conclusion is confirmed by recital 34 of Directive 2008/48 which specifies that that directive established a right of withdrawal under conditions similar to those provided for by Directive 2002/65, whereas Article 6(2)(c) of the latter specifies that the right of withdrawal established by it does not apply to ‘contracts whose performance has been fully completed by both parties at the consumer’s express request before the consumer exercises his right of withdrawal’. (
46
)
108.
On the other hand, one may recall that the purpose of the information obligations set out in Article 10 of Directive 2008/48 is to enable consumers to know the extent of their rights and obligations during the performance of the contract. These obligations are therefore of no further use once the contract has been fully performed. Consequently, it does not appear necessary for the achievement of the objectives pursued by this provision to allow consumers to exercise their right of withdrawal once the contract has in fact already been performed.
109.
In those circumstances, I would propose that the Court should reply to the fourth question in Case C‑155/20 and the seventh question in Case C‑187/20 that Article 14(1) of Directive 2008/48 must be interpreted as meaning that the creditor may not prevent the consumer from exercising his or her right of withdrawal if all the information referred to in Article 10(2) of that directive has not yet been provided in the credit agreement. However, such a right may no longer be exercised once all the obligations covered by the contract have been fully performed.
E.
On the fifth question in Case C‑155/20 and the eighth question in Case C‑187/20
110.
By the fifth question in Case C‑155/20 and the eighth question in Case C‑187/20, the referring court is asking, in essence, whether the principle of prohibition of abuse of rights may be relied on by the creditor to prevent the consumer from exercising his or her right of withdrawal under the first sentence of Article 14(1) of Directive 2008/48, where a significant period has already elapsed since the conclusion of the contract.
111.
One might first note that Directive 2008/48 does not contain any rules on the possible abuse of the rights it confers. Moreover, Member States cannot invoke provisions or principles, even of constitutional rank, to prevent the application of EU law. (
47
)
112.
It may be observed, however, that EU law enshrines the general principle of law according to which individuals may not fraudulently or abusively rely on EU law. (
48
) Consequently, in the areas governed by that law, the possibility of invoking the abusive character of the exercise by a person of a right which he or she derives from that law must be assessed exclusively with regard to this principle and not with regard to the requirements of national law.
113.
In the context of the preliminary ruling procedure, it is for the Court to clarify the scope of any general principle of EU law by providing, where appropriate, details of the interpretation to be given to that principle in the circumstances envisaged by the referring court in its question (
49
) and for the referring court to ascertain whether this situation corresponds to the facts of the case and, consequently, to reach a definitive conclusion as to the appropriate application of this principle in a given case. (
50
)
114.
With regard to the general principle of the prohibition of abuse of rights, the Court has already had occasion to emphasise that the application of this principle requires the combination of an objective element and a subjective element. (
51
)
115.
With regard to the objective element, this implies that it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the result produced by the exercise of the right in question clearly contravenes the objectives pursued by those rules. (
52
)
116.
As regards the subjective element, there is a requirement that it must follow from a set of objective elements that the essential purpose of the transactions in question is to obtain an undue advantage from the application of EU law. Consequently, the principle of prohibition of abusive practices is not applicable when the transactions at issue – and, more particularly, the choice to exercise certain legal options or to resort to certain arrangements – are likely to have an independent justification other than simply obtaining such an advantage. (
53
)
117.
In this case, it is common ground that the purpose of the right of withdrawal provided for in Article 14(1) of Directive 2008/48 is to allow consumers to reverse their decision if, after having received all the information referred to in Article 10 of that directive, they ultimately consider it preferable not to take out the proposed credit. (
54
)
118.
However, I would stress that what is at issue in the case before the national court is not the exercise of the right of withdrawal as such, but rather the fact of being able to rely on Article 14(1)(b) of Directive 2008/48, according to which that right may be invoked without time limit as long as the information referred to in Article 10 of that directive has not been communicated to the consumer. As I explained earlier, I believe the purpose of this provision is precisely to penalise lenders for not providing the requisite information.
119.
In this context, I believe that in those cases where there has been a failure to supply the necessary information, the mere fact that a consumer exercises his or her right of withdrawal several years after the conclusion of the contract can never be contrary to this objective, but rather appears fully consistent with it. (
55
)
120.
Since the first element necessary to establish the existence of an abuse of rights will in the circumstances necessarily be lacking, I consider that a creditor cannot rely on the principle of the prohibition of abuse of rights in order to prevent a consumer from exercising his or her right of withdrawal at a late stage if the creditor had not previously communicated to him or her all the information referred to in Article 10 of Directive 2008/48.
121.
This does not mean, however, that the applicants, even those in respect of whom the credit agreement had not yet been fully executed at the time when the right of withdrawal was exercised, are right to maintain that, by reason of that withdrawal, the creditor was obliged to reimburse them in full for the monthly instalments paid, including interest, in return for the transfer of the vehicle to the vendor. Indeed, the fact that the exercise of the right of withdrawal by consumers is not abusive does not mean that it should, or even that it can, lead to consequences such as those claimed by the applicants.
122.
In this context one might observe, first, that Article 14(3)(b) of Directive 2008/48 requires the Member States to provide that, in the event of exercise of the right of withdrawal, the consumer must repay to the creditor not only the capital borrowed but also the interest accrued on that capital, calculated according to the agreed borrowing rate, from the date on which the credit was ‘drawn down’ by the consumer (that is, in common parlance, ‘used’) (
56
) until the date the capital is repaid.
123.
Admittedly, Member States may provide, in the context of the penalties which they must introduce in accordance with Article 23 of Directive 2008/48, that the absence of certain obligatory information in the credit agreement may result in the loss of the borrowing interest. However, as is clear from the terms of that provision, the penalties to be imposed in the event of a breach of EU law must be proportionate. All of this means, according to the Court’s case-law, that the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular, by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality. (
57
)
124.
From this point of view, it should be noted that, on the one hand, interest on a loan does not merely remunerate the management of the loan, but also compensates, where appropriate, for the loss of monetary value. On the other hand, the omission of any of the information referred to in Article 10 of Directive 2008/48 already leads to an extension of the withdrawal period. Consequently, as regards information relating not to the content of the contract, but merely to the legal environment of the contract – as is the case with information relating to out-of-court procedures – the omission of the latter from the contract does not appear to justify the complete loss of that interest. (
58
) Such an omission is much less serious than, for example, the absence of an assessment of the applicant’s creditworthiness (
59
) or the failure to mention the APR or certain information concerning the cost of the loan for the consumer. (
60
) In my view, the Member States have a certain discretion in this regard and may provide that the failure to provide certain items of unrelated to the obligations of the parties is to be compensated by the award of liquidated damages.
125.
Similarly, in those cases where the default interest rate applicable at the time of conclusion of the contract in the form of a specific figure – as referred to in question 1 – has not been expressly indicated, then in so far as such an item of information does not concern the cost of the credit itself, but rather one of potential delay, it seems to me also more in accordance with the principle of proportionality that such omission would be remedied by precluding the creditor from claiming the interest for late payment provided for in the contract (and not the interest on the loan), including, if necessary, the award of damages.
126.
Secondly, I note with regard to the consequences of withdrawal from a credit agreement on a contract for the supply of goods or services financed by means of that credit, that Directive 2008/48 does not specify what those consequences should or might be. (
61
) Admittedly, in such a case, the credit taken out can be qualified as linked credit, if the conditions laid down in Article 3(n) of Directive 2008/48 are met. However, the only provision of Directive 2008/48 which refers to the consequences of the exercise of a right of withdrawal in the case of linked credit, namely, Article 15(1), concerns the situation where a consumer exercises that right in respect of a contract for the supply of goods or services. However, no provision deals with the situation where the right of withdrawal exercised concerns credit.
127.
One may therefore conclude that it is for the Member States to specify the effect of the exercise of the right of withdrawal in relation to consumer credit for sales contracts financed by such credit. This is confirmed by recital 35, which states that ‘where a consumer withdraws from a credit agreement in connection with which he has received goods … this Directive should be without prejudice to any regulation by Member States of questions concerning the return of the goods or any related questions’.
128.
Although the Member States’ discretion in this respect is not unlimited – since they must not undermine the effectiveness of the right of withdrawal provided for in Directive 2008/48 – they may nevertheless regulate the consequences of the exercise of this right on the contract of sale. In particular, I do not see what would prevent a Member State from allowing the seller, when the exercise of the right of withdrawal leads to the retroactive cancellation of the sale, to take into account the depreciation in the value of the goods returned which result from their use by the consumer.
129.
I am even inclined to think that the Member States are required, in certain circumstances, to provide for the payment by the consumer to the seller of such compensation, as provided for, moreover, in their respective fields of application, by Article 7 of Directive 2002/65 and Article 14(2) of Directive 2011/83. (
62
) Indeed, the prohibition of unjust enrichment is a principle common to the laws of the Member States, which has been recognised, at least implicitly, by the Court as one of the general principles of EU law. (
63
) According to this principle, a person who has suffered a loss which enhances the assets of another person without there being any valid legal basis for that enrichment is entitled to restitution, up to the amount of that loss, from the person enriched. (
64
)
130.
Since the right of withdrawal at issue in the present cases is a matter of EU law, Member States must take account of the principle of prohibition of enrichment enshrined by the Court when specifying the consequences of the exercise of this right.
131.
In this context, one may observe that, where national legislation provides that, in the event of withdrawal from the credit agreement, any linked sale agreement is to be regarded as cancelled, then the seller might suffer damage, while the buyer is likely to improve his or her assets. This is typically the case of the sale of a vehicle financed by credit since the value of a car decreases by 10 to 30% on the second-hand market from the first kilometre driven, depending on the make and model. Consequently, the seller who would have to take back a vehicle will necessarily suffer a loss. As for the buyer, he or she will necessarily enhance the value of his or her assets, since he or she will not have to bear this depreciation.
132.
It is true that the principle of the prohibition of unjust enrichment cannot be applied in the case of fault and that, therefore, it would not be applicable if the seller had actually infringed the provisions of Directive 2008/48. However, in order for the seller of goods to be considered as a co-perpetrator of a breach of Article 10(2) of Directive 2008/48 due to insufficient information in the signed credit agreement, it is necessary for the seller to have been involved in the conclusion or preparation of the credit agreement, which is only one of the situations falling under the concept of ‘linked credit’, as defined in Article 3(n) of Directive 2008/48. (
65
) In any other situation, the seller should be able to rely on the principle of unjust enrichment.
133.
Accordingly, I believe that, where a consumer exercises his or her right of withdrawal, the Member States may, at least, voluntarily provide that the vendor may deduct from the repayment an allowance for the depreciation in value of the vehicle. I admit that such a solution may deter consumers from exercising their right of withdrawal, but I consider it as a normal consequence of the fact that they enjoyed the goods or services in question during a certain period. (
66
) Consequently, even if the exercise by some of the applicants of their right of withdrawal does not appear to be abusive, the seller can be required to reimburse the value of the vehicles in full to the purchaser only if national law expressly provides for such solution as a sanction for the seller’s breach of certain obligations, such as the obligation to offer buyers only the services of credit companies whose contracts comply with the provisions of Directive 2008/48. It is for the national courts to determine what the applicable law is.
134.
In the light of all the foregoing, I would propose that the Court should answer the fifth question in Case C‑155/20 and the eighth question in Case C‑187/20, to the effect that the EU principle of the prohibition of abuse of rights cannot be relied on by the creditor to prevent the consumer from exercising his or her right of withdrawal, provided for in the first sentence of Article 14(1) of Directive 2008/48, on the sole ground that a significant period has already elapsed since the conclusion of the contract. For the reasons I have just outlined, this does not, however, mean that Member States are not entitled – even obliged – to take appropriate steps within their own legal systems to ensure that the credit suppliers do not suffer a financial loss as a result of the exercise by the consumer of the right of withdrawal.
V. Conclusion
135.
I therefore consider that the Court should answer the questions referred by the Landgericht Ravensburg (Regional Court, Ravensburg, Germany) as follows:
(1)
Article 10(2)(l) 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 must be interpreted as meaning that the credit agreement must state, first, the rate of default interest applicable at the time the credit agreement is concluded in the form of a percentage, and, secondly, when that rate might vary, the calculation formula which will be used in due course to calculate the applicable rate and in the event of recourse, as a variable, to a reference rate or benchmark, the date of publication, as well as where and by whom it was published.
(2)
Article 10(2)(t) of Directive 2008/48 must be interpreted as meaning that the credit agreement must list all available out-of-court claims or redress procedures available to the consumers, and if applicable, the cost of these procedures, whether the complaint or appeal is to be submitted on paper or electronically, the physical or electronic address to which such claim or appeal should be sent and the formal conditions to be respected when their non-observance might to lead to the loss of any possibility for the consumer to assert his or her rights.
(3)
Article 14(1) of Directive 2008/48 must be interpreted as meaning that the creditor may not prevent the consumer from exercising his or her right of withdrawal if all the information referred to in Article 10(2) of that directive has not yet been provided in the credit agreement. However, such a right may no longer be exercised once all the obligations covered by the contract have been fully performed.
(4)
The EU principle of the prohibition of abuse of rights cannot be relied on by the creditor to prevent the consumer from exercising his or her right of withdrawal, as provided for in the first sentence of Article 14(1) of Directive 2008/48 on the sole ground that a significant period has already elapsed since the conclusion of the contract where the requisite information has not been supplied by the creditor. This does not, however, mean that Member States are not entitled – even obliged – to take appropriate steps within their own legal systems to ensure that the credit suppliers do not suffer a financial loss as a result of the exercise by the consumer of the right of withdrawal.
(
1
)	Original language: English.
(
2
)	These cases also underline indirectly the sometimes divergent approaches that exist in EU consumer law with regard to the scope of certain information obligations or the right of withdrawal depending on the nature of the activity involved and, therefore, the possible need for a complete overhaul of the existing rules to make the various provisions more consistent with each other.
(
3
)	As regards these documents, the referring court seems to consider that they are not affected by the pagination problem identified in Cases C‑33/20 and C‑155/20 and that, therefore, from the point of view of German law, they can be considered to be part of the contract.
(
4
)	In DT’s contract, the latter also specifies that the credit must be repaid in the form of equal monthly instalments and a larger final instalment.
(
5
)	Judgment of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 39). See, also in this respect, judgments of 19 April 2016, DI (C‑441/14, EU:C:2016:278, paragraph 31), and of 22 January 2019, Cresco Investigation (C‑193/17, EU:C:2019:43, paragraph 73).
(
6
)	See, in this respect, judgments of 19 April 2016, DI (C‑441/14, EU:C:2016:278, paragraph 32); of 22 January 2019, Cresco Investigation (C‑193/17, EU:C:2019:43, paragraph 74); and of 5 September 2019, Pohotovosť (C‑331/18, EU:C:2019:665, paragraph 56).
(
7
)	Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
(
8
)	See, also, judgment of 5 September 2019, Pohotovosť (C‑331/18, EU:C:2019:665, paragraph 41), and of 26 March 2020, Kreissparkasse Saarlouis (C‑66/19, EU:C:2020:242, paragraph 36).
(
9
)	The question of the consumer’s inferiority with regard to negotiating power is addressed in a more relevant way in other EU provisions, in particular those contained in Directive 93/13.
(
10
)	See, to that effect, judgment of 12 July 2012, SC Volksbank România (C‑602/10, EU:C:2012:443, paragraph 38).
(
11
)	From this point of view, it is important to keep in mind that Directive 2008/48 is centred on contractual information requirements and is not concerned with questions of contractual content or commitments that parties should or should not have undertaken. Therefore, as Article 10(1) points out, certain formal requirements under national law for the exchange of consent to be valid are not necessarily relevant for assessing whether the information obligations under this directive are satisfied.
(
12
)	Judgments of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842, paragraph 31), and of 26 March 2020, Kreissparkasse Saarlouis (C‑66/19, EU:C:2020:242, paragraph 35).
(
13
)	See, to that effect, judgment of 26 March 2020, Kreissparkasse Saarlouis (C‑66/19, EU:C:2020:242, paragraph 45).
(
14
)	In practice, very few consumers, apart from those with an interest in the law, read in detail the contracts they sign. See, in particular, Office of Fair Trading, ‘Consumer contracts’, February 2011, p. 1 at 116. It is only at the stage of contract performance, when problems are encountered, that consumers will begin to take an interest in the content of the contract.
(
15
)	See, judgments of 21 March 2013, RWE Vertrieb (C‑92/11, EU:C:2013:180, paragraph 50), and of 26 March 2020, Kreissparkasse Saarlouis (C‑66/19, EU:C:2020:242, paragraphs 47 and 48). It is true that, according to the case-law, a contract, within the meaning of Directive 2008/48, and not within the meaning of the provisions governing its validity, does not necessarily have to be established in a single document. However, in so far as the primary objective of Directive 2008/48 is to harmonise the scope of the information obligations that may be imposed in the various Member States, this cannot depend on whether, in a Member State, the provisions setting out rules of public policy are part of the contract within the meaning of Directive 2008/48, since this would be contrary to such an objective. In my view, in so far as Directive 2008/48 is information-oriented, it is clear that the concept of ‘contract’ must be understood as referring to one or more tangible documents. This is confirmed by Article 10(1) thereof which specifies that all contracting parties shall receive a copy of the credit agreement.
(
16
)	See, for example, the Cambridge Dictionary. In both finance and in everyday language, there is a difference between an interest rate and a reference rate: while the former refers to the percentage used to calculate a sum to be paid in return for a service or as compensation for damage, the latter refers to the use of a benchmark taking the form of a rate to calculate this remuneration. See the definition given by the reference website for finance Investopedia of the concept of ‘reference rate’. It is only through imprecisions in language that the term ‘interest rate’ is sometimes used to designate not a fraction of hundred, but the formula used to calculate it at a given moment.
(
17
)	Admittedly, Article 3(j) of Directive 2008/48 specifies that ‘borrowing rate’ might refers to an interest rate that might be variable. However, in mathematics or finance, an interest rate is variable when the percentage expressed might change. Therefore, the fact that an interest rate might be variable does not imply that Article 10(2)(l) of Directive 2008/48 should be understood as referring to a calculation formula.
(
18
)	The argument put forward by the German Government according to which, if Article 10(2)(l) of Directive 2008/48 were to be interpreted as referring to a specific figure, this would have the consequence, in the light of Article 14(1)(b) thereof, of extending the period of withdrawal for each change in this rate, does not, in my view, appear very relevant since it is precisely the aforementioned Article 10(2)(l) that specifies that only the mention of the rate applicable on the day of conclusion of the contract is required.
(
19
)	This argument is not contradicted by the last sentence of Article 3(k) of Directive 2008/48, according to which, if not all borrowing rates are determined in the credit agreement, the borrowing rate shall be deemed to be fixed only for the partial periods for which the borrowing rates are determined exclusively by a fixed specific percentage agreed on the conclusion of the credit agreement. Indeed, it flows from Article 3(j) that fixed borrowing rates are a subset of borrowing rates, which are themselves always percentages in accordance with that provision: ‘the interest rate expressed as a fixed or variable percentage’. Emphasis added. Accordingly, Article 3(k) of that directive should be read as meaning that, if not all the percentages expressing the applicable borrowing rate are defined in the contract, these rates are to be considered as fixed only during the periods for which they were determined, exclusively by means of a given fixed percentage agreed upon at the time of the conclusion of the contract, as opposed to percentages calculated, at a specific moment in time, by applying a formula or a reference index.
(
20
)	In practice, the interest rate applicable in case of late payments is generally set by law. In that context, what remains important in the light of the objective pursued by the directive, which is to ensure a high level of consumer protection, is that consumers can get a clear idea of that rate.
(
21
)	Emphasis added.
(
22
)	See, for example, judgment of 3 September 2020, Profi Credit Polska and Others (C‑84/19, C‑222/19 and C‑252/19, EU:C:2020:631, paragraph 74).
(
23
)	Judgment of 5 October 2000, Germany v Parliament and Council (C‑376/98, EU:C:2000:544, paragraph 95).
(
24
)	See, to this effect, Opinion of Advocate General Kokott in Schyns (C‑58/18, EU:C:2019:120, point 43) and, by analogy, the Court’s reasoning in judgment of 2 May 2019, Fundación Consejo Regulador de la Denominación de Origen Protegida Queso Manchego (C‑614/17, EU:C:2019:344, paragraphs 46 to 50).
(
25
)	In that regard, I would point out that this conclusion is not contradicted by the fact that some contracts may have variable interest rates. On the one hand, that fact does not make it impossible to specify the base interest rate applicable at the time the contract is signed. On the other hand, contract management tools can be used to manage any updates to consumer information.
(
26
)	See, by analogy, judgment of 26 March 2020, Kreissparkasse Saarlouis (C‑66/19, EU:C:2020:242, paragraph 48).
(
27
)	Regulation of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48 and 2014/17/EU and Regulation (EU) No 596/2014 (OJ 2016 L 171, p. 1). Article 3(1)(3) of that regulation defines benchmark as ‘any index by reference to which the amount payable under a financial instrument or a financial contract, or the value of a financial instrument, is determined, or an index that is used to measure the performance of an investment fund with the purpose of tracking the return of such index or of defining the asset allocation of a portfolio or of computing the performance fees’.
(
28
)	In the case of a late payment interest rate calculated on the basis of a reference index issued by a central bank, informing the consumer of the possible consequences of this index presupposes informing the consumer of the manner in which the said index is reflected, which implies the formula for calculating the late payment rate incorporating this index, as well as the periodicity with which the said index is published, since the latter will in turn determine the volatility of the applicable interest rate.
(
29
)	Moreover, national laws generally determine, as is the case in German law, the benchmark, index or rate that may be used to calculate a rate of interest for late payment.
(
30
)	Judgment of 3 September 2020, Profi Credit Polska and Others (C‑84/19, C‑222/19 and C‑252/19, EU:C:2020:631, paragraph 75).
(
31
)	Judgment of 21 October 2020, Möbel Kraft (C‑529/19, EU:C:2020:846, paragraph 21). This is all the more so since, in the areas it covers, Directive 2008/48 achieves complete harmonisation.
(
32
)	See, in this sense, Article 24 of Directive 2008/48: ‘using existing bodies where appropriate’. Emphasis added.
(
33
)	As I have explained, it can be inferred from the fact that the directive provides for information obligations at several distinct stages of the contractual process and that some of the information referred to is not directly related to the contract, such as that relating to the existence of out-of-court procedures, that Article 10 of Directive 2008/48 is intended, at least in part, to make the contract a document to which the consumer can refer during its performance if he or she has any enquiries.
(
34
)	Judgment of 5 July 2012, Content Services (C‑49/11, EU:C:2012:419, paragraphs 36 and 37).
(
35
)	See, for example, judgments of 21 March 2013, RWE Vertrieb (C‑92/11, EU:C:2013:180, paragraph 50), and of 26 March 2020, Kreissparkasse Saarlouis (C‑66/19, EU:C:2020:242, paragraphs 46 to 49).
(
36
)	See, for example, judgment of 12 June 2014, Lukoyl Neftohim Burgas (C‑330/13, EU:C:2014:1757, paragraph 59), or of 27 March 2019, slewo (C‑681/17, EU:C:2019:255, paragraph 31).
(
37
)	It is true that the existence of out-of-court complaint or redress procedures is mentioned in Annex II of Directive 2008/48 among the elements to be included in the ‘Standard European Consumer Credit Information’, which must be communicated at the pre-contractual stage. However, I note that, according to Article 5(1) of that directive, the use of this document makes it possible to presume that the creditor has complied not only with the information requirements laid down in that directive, but also with those contained in Directive 2002/65, Article 3(1)(4)(a) of which requires this information to be provided prior to the conclusion of the distance contract. I therefore conclude that this information does not have to be mentioned in that document unless the contract at stake also falls under the scope of that second directive.
(
38
)	See, to that effect, recital 47 of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ 2013 L 165, p. 63). I am not entirely convinced that, as a superficial reading of paragraph 34 of the judgment of 25 June 2020, Bundesverband der Verbraucherzentralen und Verbraucherverbände (C‑380/19, EU:C:2020:498) might suggest, the existence of one or more out-of-court complaint or redress mechanisms is of fundamental importance for a consumer in the decision of the latter to sign a contract. Admittedly, if the Member States were permitted to impose mandatory, costly pre-litigation procedures, the fact of being informed of the existence of such a procedure might stop that consumer from signing the contract. However, as the Court has already had occasion to point out, in order to comply with the principle of effective judicial protection, Member States must provide that any mandatory alternative dispute resolution procedures must not give rise to costs, or give rise to very low costs only. See, judgment of 14 June 2017, Menini and Rampanelli (C‑75/16, EU:C:2017:457, paragraph 61).
(
39
)	I recall, however, that for proceedings under Directive 2013/11, the Court has ruled that consumers cannot be required to be represented by a lawyer. See judgment of 14 June 2017, Menini and Rampanelli (C‑75/16, EU:C:2017:457, paragraph 64). However, on the one hand, that directive does not cover all the out-of-court procedures referred to in Article 10(2)(t) of Directive 2008/48. On the other hand, some procedures might require representation by non-lawyers, such as by a consumer association.
(
40
)	See, Article 2(3) of Directive 2013/11.
(
41
)	See, by analogy, Opinion 1/03 (New Lugano Convention), of 7 February 2006 (EU:C:2006:81, paragraph 127).
(
42
)	The reason is probably that Directive 2013/11 applies to any kind of transaction.
(
43
)	This probably explains why, even though Directive 2013/11 is subsequent to Directive 2008/48, the legislature did not consider it necessary to amend Directive 2008/48. That said, I note that the scope of each information requirement is different. Indeed, the information obligation provided for in Directive 2013/11 concerns only, as specified in Article 2(1) thereof, out-of-court complaints or redress procedures involving a sustainable dispute resolution entity. In addition, Directive 2008/48 concerns the sale of consumer credit services only, whereas Directive 2013/11 concerns any commercial transaction.
(
44
)	Directive of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).
(
45
)	For example, Article 15(1) of Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provisions relating to direct life assurance, laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 79/267/EEC (OJ 1990 L 330, p. 50), at issue in the judgments of 19 December 2013, Endress (C‑209/12, EU:C:2013:864), and of 19 December 2019, Rust-Hackner and Gmoser (C‑355/18 and C‑356/18, EU:C:2019:1123), sets out a right of cancellation. The same applies to Article 5 of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31), at issue in the judgment of 10 April 2008, Hamilton (C‑412/06, EU:C:2008:215). That directive has been repealed and replaced by Directive 2011/83, which adopts a different solution, since it now provides for a right of withdrawal, while expressly providing for a time limit.
(
46
)	See also recital 24 of Directive 2002/65 and judgment of 11 September 2019, Romano (C‑143/18, EU:C:2019:701, paragraph 36).
(
47
)	See, to that effect, judgments of 17 December 1970, Internationale Handelsgesellschaft (11/70, EU:C:1970:114, paragraph 3); of 13 December 1979, Hauer (44/79, EU:C:1979:290, paragraph 14); of 18 October 2016, Nikiforidis (C‑135/15, EU:C:2016:774, paragraph 28); and of 16 July 2020, Facebook Ireland and Schrems (C‑311/18, EU:C:2020:559, paragraph 100).
(
48
)	See, to this effect, judgments of 6 February 2018, Altun and Others (C‑359/16, EU:C:2018:63, paragraphs 48 and 49), and of 26 February 2019, T Danmark and Y Denmark (C‑116/16 and C‑117/16, EU:C:2019:135, paragraph 76).
(
49
)	See, to this effect, judgment of 21 February 2006, Halifax and Others (C‑255/02, EU:C:2006:121, paragraph 77).
(
50
)	See, by analogy, judgment of 14 December 2000, Emsland-Stärke (C‑110/99, EU:C:2000:695, paragraph 54), and of 13 March 2014, SICES and Others (C‑155/13, EU:C:2014:145, paragraph 34).
(
51
)	See, for example, judgment of 28 July 2016, Kratzer (C‑423/15, EU:C:2016:604, paragraph 38).
(
52
)	See, for example, judgment of 13 March 2014, SICES and Others (C‑155/13, EU:C:2014:145, paragraph 32).
(
53
)	See judgment of 14 December 2000, Emsland-Stärke (C‑110/99, EU:C:2000:695, paragraphs 52 and 53).
(
54
)	See, by analogy, but concerning a right of cancellation, judgment of 19 December 2019, Rust-Hackner and Gmoser (C‑355/18 and C‑356/18, EU:C:2019:1123, paragraph 101).
(
55
)	In my opinion, the principle of the prohibition of abuse of rights could, however, possibly be applied if it were established that the consumer repeatedly took out credit and then withdrew within the 14-day period, before taking out new credit and so on.
(
56
)	The use of the term ‘drawn down’ is explained by the fact that there may be a temporary gap between the moment the credit agreement is signed and the moment the sale is completed and where the money thus made available will be used and then disbursed by the bank.
(
57
)	See, judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842, paragraph 63).
(
58
)	See, judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842, paragraph 72).
(
59
)	See, judgment of 27 March 2014, LCL Le Crédit Lyonnais (C‑565/12, EU:C:2014:190, paragraph 45 et seq.).
(
60
)	See, judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, EU:C:2016:842, paragraph 70).
(
61
)	Regarding Article 14(4) thereof, it concerns services ancillary to credit, and not goods or services financed by means of credit. I also note Directive 2011/83_which contains provisions on the effect of the exercise of the right of withdrawal on ancillary contracts applies only to distance or off-premises contracts, which does not appear to be the case with the contracts at issue in the main proceedings.
(
62
)	A right for the seller to such compensation was not provided for in Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19) which, prior to Directive 2011/83, governed distance contracts. Directive 2011/83 was adopted as stated in recital 47 thereof, because ‘some consumers exercise their right of withdrawal after having used the goods to an extent more than necessary to establish the nature, characteristics and the functioning of the goods. In this case the consumer should not lose the right to withdraw but should be liable for any diminished value of the goods. In order to establish the nature, characteristics and functioning of the goods, the consumer should only handle and inspect them in the same manner as he would be allowed to do in a shop. For example, the consumer should only try on a garment and should not be allowed to wear it. Consequently, the consumer should handle and inspect the goods with due care during the withdrawal period. The obligations of the consumer in the event of withdrawal should not discourage the consumer from exercising his right of withdrawal’.
(
63
)	See, for example, in this sense, judgment of 16 December 2008, Masdar (UK) v Commission (C‑47/07 P, EU:C:2008:726, paragraph 47).
(
64
)	See, to this effect, judgment of 9 July 2020, Czech Republic v Commission (C‑575/18 P, EU:C:2020:530, paragraph 82).
(
65
)	Although the Court has already held that the freedom to conduct a business may be subject to a wide range of interventions by public authorities capable of establishing, in the general interest, limitations on the exercise of economic activity (see, for example, judgment of 30 June 2016, Lidl (C‑134/15, EU:C:2016:498, paragraph 34)), a person should only be, in principle, held liable for another person’s actions if that person was responsible for controlling or organising that person’s activities.
(
66
)	It should also be borne in mind that, in respect of the information referred to in Article 10 of Directive 2008/48 which is decisive for consent, the consumer always retains the possibility of requesting the cancellation of the credit agreement on the basis of national law, as emphasised in Article 10(1) and recital 30 of that directive.