OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 27 February 2020 (1)
Case C‑778/18
Association française des usagers de banques
v
Ministre de l’Économie et des Finances
(Request for a preliminary ruling from the Conseil d’État
(Council of State, France))
(Reference for a preliminary ruling – Consumer protection – Credit agreements for consumers relating to residential immovable property – Payment or savings account – Obligation for the borrower to deposit his or her income in a payment account during a period fixed by the loan agreement – Individual advantage – Directive 2007/64/EC – Article 45(2) – Directive (EU) 2015/2366 – Article 55(2) – Directive 2014/17/EU – Article 4(26) and (27) – Tying practice – Bundling practice – Article 12(1) – Article 12(2)(a) – Article 12(3) – Directive 2014/92/EU)
I.      Introduction
1.        This request for a preliminary ruling made by the Conseil d’État (Council of State, France) concerns the interpretation of Article 12(2)(a) and 12(3) of Directive 2014/17/EU, (2) of Article 45(2) of Directive 2007/64/EC, (3) of Article 55(2) of Directive (EU) 2015/2366, (4) and of Article 12(3) of Directive 2014/92/EU. (5) Those provisions seek, in essence, to facilitate banking mobility.
2.        The request has been made in the context of proceedings between the Association française des usagers de banques (French Association of Bank Users; ‘the AFUB’) and the ministre de l’Économie et des Finances (Minister for the Economy and Finance), in which the AFUB is challenging national legislation which permits the creditor to make a mortgage loan offer conditional upon the borrower depositing the whole of his or her salary or similar income in a payment account opened with the creditor, during a period of 10 years or for the duration of the credit agreement if it is shorter, provided that the creditor confers on the borrower an individual advantage as consideration.
3.        The AFUB considers that that legislation disregards the objective of banking mobility pursued by the aforementioned directives. In that regard, the Conseil d’État (Council of State) asks the Court to rule on the compatibility of such legislation with the provisions of EU law set out below.
4.        In this Opinion, I will explain why I consider that, assuming that legislation such as that at issue in the main proceedings allows tying practices within the meaning of Directive 2014/17, this being a matter which it is for the referring court to verify in the dispute in the main proceedings, that directive does not permit such tying practices, either under Article 12(2)(a) or under Article 12(3) thereof. By contrast, to the extent to which the referring court takes the view that the legislation at issue in the main proceedings relates to a bundling practice within the meaning of Directive 2014/17, Article 45(2) of Directive 2007/64, Article 55(2) of Directive 2015/2366 and Article 12(3) of Directive 2014/92 do not preclude such legislation.
II.    The legal framework
A.      EU law
1.      Directive 2007/64
5.        Article 45 of Directive 2007/64, entitled ‘Termination’, provides in its paragraph 2:
‘Termination of a framework contract concluded for a fixed period exceeding 12 months or for an indefinite period shall be free of charge for the payment service user after the expiry of 12 months. In all other cases charges for the termination shall be appropriate and in line with costs.’
2.      Directive 2015/2366
6.        Directive 2007/64 was repealed with effect from 13 January 2018 by Directive 2015/2366, Article 55 of which contains, in its paragraph 2, a provision which is essentially identical to that of Article 45(2) of Directive 2007/64, except that the period covered has been reduced from 12 to 6 months.
3.      Directive 2014/17
7.        Recitals 24 and 25 of Directive 2014/17 are worded as follows:
‘(24)      Given the particular characteristics of credit agreements related to residential immovable property it is common practice for creditors to offer to consumers a set of products or services which can be purchased together with the credit agreement. Therefore, given the significance of such agreements for consumers, it is appropriate to lay down specific rules on tying practices. Combining a credit agreement with one or more other financial services or products in packages is a means for creditors to diversify their offer and to compete against each other, provided that the components of the package can also be bought separately. While a combination of credit agreements with one or more other financial services or products in packages can benefit consumers, it may negatively affect consumers’ mobility and their ability to make informed choices, unless the components of the package can be bought separately. It is important to prevent practices such as tying of certain products which may induce consumers to enter into credit agreements which are not in their best interest, without however restricting product bundling which can be beneficial to consumers. Member States should however continue monitoring retail financial services markets closely to ensure that bundling practices do not distort consumer choice and competition in the market.
(25)      As a general rule, tying practices should not be allowed unless the financial service or product offered together with the credit agreement could not be offered separately as it is a fully integrated part of the credit, for example in the event of a secured overdraft. In other instances, it may however be justified for creditors to offer or sell a credit agreement in a package with a payment account, savings account, investment product or pension product, for instance where the capital in the account is used to repay the credit or is a prerequisite for pooling resources to obtain the credit, or in situations where, for instance, an investment product or a private pension product serves as an additional security for the credit. …’
8.        Article 4 of that directive provides:
‘For the purposes of this Directive, the following definitions shall apply:
…
(26)      “Tying practice” means the offering or the selling of a credit agreement in a package with other distinct financial products or services where the credit agreement is not made available to the consumer separately.
(27)      “Bundling practice” means the offering or the selling of a credit agreement in a package with other distinct financial products or services where the credit agreement is also made available to the consumer separately but not necessarily on the same terms or conditions as when offered bundled with the ancillary services.
…’
9.        Article 12 of that directive provides:
‘1.      Member States shall allow bundling practices but shall prohibit tying practices.
2.      Notwithstanding paragraph 1, Member States may provide that creditors can request the consumer or a family member or close relation of the consumer to:
(a)      open or maintain a payment or a savings account, where the only purpose of such an account is to accumulate capital to repay the credit, to service the credit, to pool resources to obtain the credit, or to provide additional security for the creditor in the event of default;
…
3.      Notwithstanding paragraph 1, Member States may allow tying practices when the creditor can demonstrate to its competent authority that the tied products or categories of product offered, on terms and conditions similar to each other, which are not made available separately, result in a clear benefit to the consumers taking due account of the availability and the prices of the relevant products offered on the market. This paragraph shall only apply to products which are marketed after 20 March 2014.
…’
4.      Directive 2014/92
10.      Recital 12 of Directive 2014/92 is worded as follows:
‘… All provisions of this Directive should concern payment accounts through which consumers are able to carry out the following transactions: place funds, withdraw cash and execute and receive payment transactions to and from third parties, including the execution of credit transfers. As a consequence, accounts with more limited functions should be excluded. For example, accounts such as savings accounts, credit card accounts where funds are usually paid in for the sole purpose of repaying a credit card debt, current account mortgages or e-money accounts should in principle be excluded from the scope of this Directive. However, should those accounts be used for day-to-day payment transactions and should they comprise all of the functions listed above, they will fall within the scope of this Directive. …’
11.      Article 1 of that directive, which is entitled ‘Subject matter and scope’, provides in its paragraph 6:
‘This Directive applies to payment accounts through which consumers are able at least to:
(a)      place funds in a payment account;
(b)      withdraw cash from a payment account;
(c)      execute and receive payment transactions, including credit transfers, to and from a third party.
…’
12.      Under paragraph 3 of Article 12 (‘Fees connected with the switching service’) of that directive:
‘Member States shall ensure that fees, if any, applied by the transferring payment service provider to the consumer for the termination of the payment account held with it are determined in accordance with Article 45(2), (4) and (6) of [Directive 2007/64 (6)].’
B.      French law
1.      Loi relative à la transparence, à la lutte contre la corruption et à la modernisation de la vie économique (Law on transparency, anti-corruption and economic modernisation)
13.      Under Article 67(II) of Law No 2016‑1691 of 9 December 2016 on transparency, anti-corruption and economic modernisation:
‘In accordance with the conditions laid down in Article 38 of the Constitution, the Government may adopt, by way of order and within six months of the enactment of this Law, any measure coming within the scope of the law providing a framework, in compliance with Article 312‑1‑2 of the Monetary and Financial Code, for the conditions under which the conclusion of a consumer credit agreement relating to immovable property and the associated interest rate may be combined with opening a deposit account and depositing income, irrespective of its nature or origin, for the duration of the credit agreement …’
2.      Code monétaire et financier (Monetary and Financial Code)
14.      Article L. 312‑1‑2 of the Monetary and Financial Code provides:
‘I.‑l.      The selling or offering for sale of bundled products or services is prohibited unless the products or services included in the bundled offer may be purchased individually or are indissociable.
2.      The selling or offering for sale of products or services to a customer which give entitlement free of charge, immediately or in the future, to a pecuniary advantage or a benefit in kind in the form of products, goods or services of a value above a threshold set in relation to the type of product or service offered to the customer by means of a regulation introduced by order of the Minister for the Economy after consultation with the advisory committee instituted by Article L. 614‑1 is prohibited.
These provisions shall also apply to the payment services referred to in Article L. 314‑1(II).’
3.      Code de la consommation (Consumer Code)
15.      Under Article L. 313‑25 of the Consumer Code, as amended by Order No 2017‑1090 of 1 June 2017 on offers relating to mortgage loans made conditional on the borrower depositing his or her salary or similar income in a payment account, in the version applicable to the facts in the main proceedings:
‘The offer referred to in Article L. 313‑24:
…
10°      indicates whether the loan is to be conditional upon depositing salaries or similar income pursuant to Article L. 313‑25‑1. If it is, the period for depositing salaries or similar income, where appropriate the fees for opening and maintaining the account into which salaries or similar income are to be deposited, and the nature of the individual advantage conferred on the borrower by the creditor as consideration shall be laid down. The offer must identify clearly that advantage by stating the conditions, rates and other terms under which it is conferred and which the creditor shall apply if the requirement to deposit salaries or similar income is not satisfied by the borrower.
…’
16.      Article L. 313‑25‑1 of that code, inserted by Order No 2017‑1090 of 1 June 2017, cited above, in the version applicable to the facts in the main proceedings, provides:
‘The creditor may make the loan offer, as referred to in Article L. 313‑24, conditional upon the borrower depositing his or her salary or similar income in a payment account, as referred to in Article L. 314‑1 of the Monetary and Financial Code, provided that the creditor confers on the borrower an individual advantage as consideration.
That condition may not be imposed on the borrower beyond the maximum duration set by decree of the Conseil d’État (Council of State). Following the expiry of the period fixed by the credit agreement, the individual advantage shall be conferred on the borrower until the expiry of the loan period.
If, before the expiry of that period, the borrower ceases to satisfy the abovementioned requirement to deposit his or her salary or similar income, the creditor may withdraw, in respect of any outstanding instalments until the maturity date of the loan, the individual advantage referred to in the first subparagraph and shall apply the conditions, rates and other terms referred to in Article L. 313‑25(10). …’
17.      Article R. 313‑21‑1, inserted in that code by Decree No 2017‑1099 of 14 June 2017 fixing the period during which the creditor may require the borrower to deposit his or her salary or similar income in a payment account, provides:
‘The maximum period for depositing salaries or similar income in an account, as referred to in Article L. 313‑25‑1, is fixed at 10 years following the conclusion of the credit agreement or, as the case may be, amendment of the initial credit agreement.
That period cannot in any event exceed the duration of the credit agreement.’
III. The dispute in the main proceedings and the questions referred for a preliminary ruling
18.      By Law No 2016‑1691 of 9 December 2016 on transparency, anti-corruption and economic modernisation, the French Parliament authorised the government of that Member State to adopt, by way of order, any measure coming within the scope of the law providing a framework, in compliance with Article 312‑1‑2 of the Monetary and Financial Code, (7) for the conditions under which the conclusion of a consumer credit agreement relating to immovable property and the associated interest rate could be combined with opening a deposit account and depositing income.
19.      The adoption of Order No 2017‑1090 of 1 June 2017 on mortgage loan offers that are conditional upon the borrower depositing his or her salary or similar income in a payment account stems from that authorisation.
20.      That order inserted into the Consumer Code a new Article L. 313‑25‑1, which provides, in essence, that the creditor may make the loan offer conditional upon the borrower depositing his or her salary or similar income in a payment account, opened with the creditor, provided that the creditor confers on the borrower an individual advantage by way of consideration. In addition, the requirement to open an account and deposit income cannot be imposed on the borrower beyond a maximum duration at the end of which the individual advantage is conferred on the borrower until the expiry of the loan period.
21.      In response to a request for clarification from the Court, (8) the referring court stated that the concept of ‘payment account’ within the meaning of Article L. 313‑25‑1 of the Consumer Code is not limited to payment accounts intended exclusively for the repayment of mortgage credit, or more generally a mortgage, but covers accounts used by borrowers to execute and receive day-to-day payment transactions such as placing, transferring and withdrawing funds.
22.      Decree No 2017‑1099 of 14 June 2017, adopted on the basis of the order referred to in point 19 of this Opinion, inserted into the Consumer Code a new Article R. 313‑21‑1, applicable to loan offers issued since 1 January 2018 and providing that the duration of the requirement to open an account and deposit income must not exceed a period of 10 years or the period of the loan if it is shorter than 10 years.
23.      The AFUB requests the Conseil d’État (Council of State) to annul that decree on the ground of misuse of powers.
24.      In that regard, the AFUB claims, first, that Order No 2017‑1090 of 1 June 2017, pursuant to which the contested decree was adopted, disregards the objective of facilitating banking mobility pursued by Directives 2007/64, 2015/2366, 2014/92 and 2014/17. It authorises credit institutions to attach such advantages to opening an account and depositing income with them that waiving those advantages would represent a prohibitive cost for borrowers and would run counter to banking mobility. Secondly, the AFUB claims that the contested decree disregards that same objective in so far as it fixes at 10 years the maximum period during which credit institutions may make those advantages conditional upon borrowers depositing their salary or similar income in an account opened with those institutions.
25.      The Minister for the Economy and Finance considers those pleas to be unfounded.
26.      In examining the application for annulment of the decree, in respect of which Order No 2017‑1090 of 1 June 2017 is the legal basis, the Conseil d’État (Council of State) is unsure whether the provisions set out in those two acts are compatible with the directives cited above. (9)
27.      More specifically, the referring court considers that the response to the pleas in law raised by the AFUB depends on whether, in the first place, the provisions of Article 12(2)(a) of Directive 2014/17, having regard, inter alia, to the purpose that they assign to the payment or savings account which they authorise to be opened or maintained, or the provisions of paragraph 3 of that article, authorise, first, the creditor to require the borrower, as consideration for an individual advantage, to deposit all of his or her salary or similar income in a payment account opened with that creditor during a period fixed by the credit agreement, whatever the amount, the instalments and the duration of the loan, and, secondly, that the period thus fixed may extend to 10 years or, if it is shorter, to the duration of the agreement.
28.      In the second place, that response will depend on whether, first, Article 45 of Directive 2007/64, applicable at the material time and now recast as Article 55 of Directive 2015/2366, and Articles 9 to 14 of Directive 2014/92, relating to the facilitation of banking mobility and to fees for closing a payment account, preclude the closure of an account opened by the borrower with the creditor for the purpose of depositing his or her income with that creditor as consideration for an individual advantage as part of a credit agreement from resulting, if it occurs before the expiry of the period fixed in that agreement, in the loss of that advantage, including more than one year after the opening of the account, and, secondly, whether those provisions preclude the duration of that period from extending to 10 years or to the total duration of the loan if that duration is shorter than 10 years.
29.      In those circumstances, by decision of 5 December 2018, received at the Court on 11 December 2018, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Do the provisions of Article 12(2)(a) of Directive [2014/17], having regard, inter alia, to the purpose that they assign to the payment or savings account which they authorise to be opened or maintained, or the provisions of paragraph 3 of that article, authorise, first, the creditor to require the borrower, as consideration for an individual advantage, to deposit all of his or her salary or similar income in a payment account opened with that creditor during a period fixed by the credit agreement, whatever the amount, the instalments and the duration of the loan, and, secondly, that the period thus fixed may extend to 10 years or, if it is shorter, the duration of the agreement?
(2)      Do Article 45 of Directive [2007/64], applicable at the material time and now recast as Article 55 of Directive [2015/2366], and Articles 9 to 14 of Directive [2014/92], relating to the facilitation of banking mobility and to fees for closing a payment account, preclude the closure of an account opened by the borrower with the creditor for the purpose of depositing his or her income with that creditor as consideration for an individual advantage as part of a credit agreement from resulting, if it occurs before the expiry of the period fixed in that agreement, in the loss of that advantage, including more than one year after the opening of the account and, secondly, do those provisions prevent the duration of that period extending to 10 years or the total duration of the loan?’
30.      The French Government, the Czech Government and the European Commission lodged written observations before the Court. The French Government and the Commission attended the hearing held on 18 December 2019.
IV.    Analysis
A.      Interpretation of Article 12(2)(a) and 12(3) of Directive 2014/17 (first question)
31.      By its first question, the referring court asks, in essence, whether Article 12(2)(a) of Directive 2014/17, or paragraph 3 of that article, authorises national legislation such as that at issue in the main proceedings, which permits a creditor to require a borrower, as consideration for an individual advantage, to deposit all of his or her salary or similar income in a payment account opened with that creditor during a period fixed by the loan agreement, whatever the amount, the instalments and the duration of the loan, and which allows the period thus fixed to extend to 10 years or, if it is shorter, to the duration of the agreement.
32.      Directive 2014/17 lays down a common framework for certain aspects of the laws of the Member States concerning agreements covering credit for consumers secured by a mortgage or otherwise relating to residential immovable property, (10) and seeks to ensure that consumers entering into credit agreements relating to immovable property benefit from a high level of protection. (11)
33.      In that context, Article 12(1) of Directive 2014/17 provides that Member States are to allow bundling practices but are to prohibit tying practices. (12)
34.      Although tying practices are prohibited, Article 12(2)(a) and 12(3) of Directive 2014/17 does, however, allow tying practices under certain conditions. By its first question, the referring court asks whether legislation such as that at issue in the main proceedings can come within the scope of one of those two exceptions.
35.      In this regard, I note, first of all, that Directive 2014/17 applies to situations covered by legislation concerning mortgage loans such as the legislation at issue in the main proceedings. In accordance with Article 3(1)(b) of that directive, it applies to credit agreements the purpose of which is to acquire or retain property rights in land or in an existing or projected building.
36.      Next, I note that the question referred is based on the premiss that the national legislation at issue in the main proceedings allows tying practices, since the exceptions provided for in Article 12(2)(a) and 12(3) of Directive 2014/17 relate only to tying practices.
37.      However, the French Government submits that the legislation at issue concerns bundling practices within the meaning of Directive 2014/17 and not tying practices and, therefore, that the national legislation in question is authorised under Article 12(1) of that directive. That government claims that the creditor is required to ensure that the consumer is offered both credit relating to immovable property conditional upon the borrower depositing his or her salary or similar income in a payment account as consideration for an individual advantage which may take the form of a preferential interest rate, the reduction of fees for maintaining the payment account or the charges associated with bank cards, and credit relating to immovable property which is not conditional upon the borrower depositing his or her salary or similar income in a payment account. In other words, the credit agreement in relation to immovable property and the payment account may be bought separately. (13)
38.      The Conseil d’État (Council of State) observed, in response to a request for clarification from the Court, (14) that the question of whether the possibility, provided for in Article L. 313‑25‑1 of the Consumer Code, of making the loan conditional upon depositing salaries or similar income in a payment account opened with the creditor must be interpreted as allowing tying practices or bundling practices within the meaning of Directive 2014/17 is a question ‘which is for the Conseil d’État (Council of State) to determine once the Court has given its answer to the question referred for a preliminary ruling’ and that ‘this is a difficult issue, to the extent to which it has never been addressed by the case-law to date, including that of the Court relating to the scope of the concepts of tying practice and bundling practice within the meaning of EU law but which also, in the light of practices observed, is a matter for the national court’.
39.      It is thus apparent that the Conseil d’État (Council of State) has doubts as to the scope of the legislation at issue in the main proceedings. (15)
40.      In this regard, I would draw attention to the effect that the scope of the legislation at issue in the main proceedings has on the answer to be given to the question referred for a preliminary ruling.
41.      On the assumption that the referring court takes the view that the legislation at issue in the main proceedings does allow tying practices within the meaning of Directive 2014/17, that legislation will be authorised under that directive only if it meets the conditions set out in either Article 12(2)(a) or Article 12(3) thereof. In such a situation, it will, admittedly, be necessary to verify whether those two provisions are applicable to the dispute in the main proceedings. On the other hand, if the referring court considers that the legislation at issue in the main proceedings concerns bundling practices within the meaning of Article 4(27) of Directive 2014/17, that legislation will then be authorised as such under Article 12(1) of that directive, (16) which, it should be remembered, allows bundling practices. (17)
42.      Assuming that the legislation at issue in the main proceedings allows tying practices within the meaning of Article 4(26) of Directive 2014/17, (18) I will examine below the applicability of the exceptions set out in Article 12(2)(a) (section 1) and in Article 12(3) of that directive (section 2).
1.      Applicability of Article 12(2)(a) of Directive 2014/17
43.      To the best of my knowledge, Article 12(2)(a) of Directive 2014/17 has not yet been the subject of examination by the Court. (19)
44.      Under that provision Member States may authorise creditors to request the consumer to open or maintain a payment or a savings account, where the only purpose of such an account is to accumulate capital to repay the credit, to service the credit, to pool resources to obtain the credit, or to provide additional security for the creditor in the event of default.
45.      In the present case, it is therefore necessary to verify whether the payment account provided for in Article L. 313‑25‑1 of the Consumer Code has one of those four alternative objectives and, as the case may be, whether it is the only objective within the meaning of Article 12(2)(a) of Directive 2014/17.
46.      As I will explain, I consider this not to be the case: first, I have doubts as to whether the purpose of the payment account provided for in Article L. 313‑25‑1 of the Consumer Code is consistent with the objectives of the account allowed under Article 12(2)(a) of Directive 2014/17 (section a). Secondly, it is in any event apparent from the documents before the Court that the payment account provided for in Article L. 313‑25‑1 of the Consumer Code performs other functions than those authorised by Article 12(2)(a) of that directive, a fact which, I believe, precludes the applicability of that provision (section b).
(a)    The purpose of the payment account at issue in the main proceedings
47.      So far as concerns the purpose of the payment account as provided for in Article L. 313‑25‑1 of the Consumer Code, it is apparent, in the light of the documents before the Court, that the interested parties hold differing views.
48.      I note, first of all, that the French Government maintained, as an alternative submission, (20) at the hearing, that, by allowing the requirement for the consumer to deposit income in a payment account opened with the creditor, the national legislation merely authorises the creditor to request the opening of an account the sole purpose of which is to provide the creditor with additional security in the event of payment default. In other words, the purpose of the legislation at issue in the main proceedings is covered by the last of the four objectives set out in Article 12(2)(a) of Directive 2014/17.
49.      Next, I observe that the referring court clarified that the concept of ‘payment account’ as provided for in Article L. 313‑25‑1 of the Consumer Code is not limited to payment accounts intended exclusively for the repayment of mortgage credit, but also includes accounts used by borrowers for day-to-day payment transactions such as placing, transferring and withdrawing funds. (21)
50.      That clarification furnished by the referring court implies therefore that the payment account as provided for in Article L. 313‑25‑1 of the Consumer Code seeks to achieve several objectives, only one of which is provided for by Article 12(2)(a) of Directive 2014/17, namely to accumulate capital in order to ensure repayment of the loan.
51.      Lastly, I note that the Commission has pointed out that the objective of Article L. 313‑25‑1 of the Consumer Code and of making mortgage loan offers conditional upon the borrower depositing his or her salary or other similar income is to protect the borrower against the use of unfair terms requiring the borrower to deposit his or her salary or similar income in the field of credit relating to immovable property pursuant to the recommendation of the Commission nationale des clauses abusives (a public body tasked with monitoring the use of unfair terms) which considers that such clauses may appear to be disproportionate if no individual advantage is conferred as consideration.
52.      On the basis of that observation, the Commission thus seems to suggest that the purpose of the payment account as provided for in Article L. 313‑25‑1 of the Consumer Code differs from those mentioned in Article 12(2)(a) of Directive 2014/17. (22)
53.      That said, I am nonetheless unsure how the payment account, as provided for in Article L. 313‑25‑1 of the Consumer Code, can seek to achieve one of the purposes set out in Article 12(2)(a) of Directive 2014/17 whilst being used by borrowers to execute and receive day-to-day payment transactions such as placing, transferring and withdrawing funds, as stated by the referring court. In so far as borrowers have full access to the payment account – that is to say, without any specific restrictions – depositing their salaries or similar income in such an account provides no additional security for the creditor in terms of repayment of the associated loan.
54.      This observation leads me to the ‘only purpose’ requirement of the account within the meaning of Article 12(2)(a) of Directive 2014/17.
(b)    The ‘only purpose’ requirement within the meaning of Article 12(2)(a) of Directive 2014/17
55.      Does the fact that borrowers may use the payment account as provided for in Article L. 313‑25‑1 of the Consumer Code to effect and receive payment transactions preclude the applicability of Article 12(2)(a) of Directive 2014/17, which requires that the only purpose of such an account is one of the four objectives set out in that provision?
56.      On the basis of a literal, teleological and contextual interpretation of Article 12(2)(a) of Directive 2014/17, I take the view, like the Commission, that this is the case.
57.      First of all, the wording of Article 12(2)(a) of that directive requires that the only purpose of the account is one of the four objectives set out in that provision.
58.      In that regard, it is clear from the wording of the first three objectives that the payment account may be used only to accumulate capital or pool resources, which excludes withdrawing funds and payment transactions. The final purpose set out in Article 12(2)(a) of Directive 2014/17 implies a similar exclusion, in so far as it concerns ‘security for the creditor in the event of default’. By definition, an account which provides security in the event of default cannot be intended to be used by borrowers for other purposes.
59.      Next, as I have stated in point 53 of this Opinion, the use of the payment account to effect and receive payment transactions may undermine the objectives of the payment account set out in Article 12(2)(a) of Directive 2014/17, which justify the exception to the prohibition of tying practices.
60.      Indeed, as is apparent from recitals 24 and 25 of Directive 2014/17, tying practices may negatively affect consumers’ mobility and their ability to make informed choices. That is why, as a general rule, tying practices are not allowed under that directive, which allows them only in certain well-defined circumstances where the European legislature considers there to be no such risk. Allowing other uses of the payment account, such as those set out in the legislation at issue in the main proceedings, may undermine the objective of Article 12(2)(a) of Directive 2014/17.
61.      I cannot therefore support the position taken by the French Government, which observed, at the hearing, that excluding certain uses of the account, such as those provided for in the legislation at issue in the main proceedings, has the effect of restricting for the creditor, without due cause, the use by the consumer of its payment account in disregard of its own interests.
62.      I would point out, in this regard, that it follows in practice from the interpretation that I am proposing that creditors are required to limit the income to be deposited in the payment account to the portion of income corresponding to the amounts necessary to repay the credit, to obtain the credit or to provide additional security for the creditor in the event of default. This restriction is beneficial to consumers’ banking mobility, in so far as it allows them to invest their remaining income in credit institutions other than the mortgage lender.
63.      Lastly, the interpretation that I am proposing is supported by a contextual interpretation of Article 12(2)(a) of Directive 2014/17.
64.      I would point out, on the one hand, that Article 12(2)(a) of that directive constitutes a derogation from the prohibition of tying practices provided for in Article 12(1) of that directive and that, therefore, it is to be strictly construed. (23)
65.      On the other hand, the interpretation that I am proposing is supported by the way in which Directive 2014/17 is linked to Directive 2014/92 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features.
66.      As the Commission observed at the hearing, in so far as a payment account may be used to withdraw funds, that account is subject to the provisions of Directive 2014/92 on payment account switching. By contrast, an account which has the sole purpose of repaying the credit is expressly excluded from the scope of that directive, (24) the reason being, I presume, that such an account may be permitted as a tying practice pursuant to Article 12(2)(a) of Directive 2014/17.
67.      It follows from the foregoing that Article 12(2)(a) of Directive 2014/17 must be interpreted as meaning that it does not authorise national legislation such as that at issue in the main proceedings, in so far as that legislation allows tying practices within the meaning of Article 4(26) of that directive, this being a matter which it is for the referring court to verify in the dispute in the main proceedings.
2.      Applicability of Article 12(3) of Directive 2014/17
68.      Article 12(3) of Directive 2014/17 requires that the creditor must be able to demonstrate to its competent authority that the tying practices result in a clear benefit to consumers. In addition, the provision establishes how to check whether this is the case: by taking due account of the availability and the prices of the relevant products offered on the market.
69.      In that regard, I note that, according to the Court’s settled case-law, the transposition of a directive into domestic law does not necessarily require the provisions of the directive to be enacted in precisely the same words in a specific, express provision of national law: a general legal context may suffice. However, transposition must guarantee the full application of the directive in a sufficiently clear and precise manner. Each Member State is obliged to implement the provisions of directives in a manner that meets in full the requirements of clarity and certainty in legal situations imposed by the EU legislature, in the interests of the persons concerned established in the Member States. To that end, the provisions of a directive must be implemented with unquestionable legal certainty and with the requisite specificity, precision and clarity. (25)
70.      So far as concerns the legislation at issue in the main proceedings, I note that it does not appear from that legislation that it is necessary to assess the individual advantage in the light of the availability and the prices of the other products offered on the market. Moreover, it is apparent from the observations of the French Government that the requirement to deposit salaries or similar income in a payment account as provided for in the credit agreement relating to immovable property is the result of a free negotiation between the creditor and the consumer.
71.      From this point of view, I consider, as the Commission observed at the hearing, that the legislation at issue does not guarantee with the requisite specificity, precision and clarity that the individual advantage will result in a clear benefit to consumers vis-à-vis the prices of the relevant products offered on the market. (26) This is all the more so since Article 12(3) of Directive 2014/17 constitutes a derogation from the prohibition of tying practices and, therefore, must be strictly construed. (27)
72.      It follows that Article 12(3) of Directive 2014/17 must also be interpreted as meaning that it does not authorise national legislation such as that at issue in the main proceedings, in so far as that legislation allows tying practices within the meaning of Article 4(26) of that directive, this being a matter which it is for the referring court to verify in the dispute in the main proceedings.
B.      Interpretation of Article 45(2) of Directive 2007/64, Article 55(2) of Directive 2015/2366 and Article 12(3) of Directive 2014/92 (second question)
73.      By its second question, the referring court asks, in essence, whether, on the one hand, Article 45 of Directive 2007/64 and Article 55 of Directive 2015/2366, which replaced that first provision with effect from 13 January 2018, and, on the other, Articles 9 to 14 of Directive 2014/92, preclude national legislation under which the closure of an account opened by the borrower with the creditor for the purposes of depositing his or her income with that creditor as consideration for an individual advantage as part of a credit agreement results, if it occurs before the expiry of the period fixed in that agreement, in the loss of that advantage, including more than one year after the opening of the account, and whether the duration of that period may extend to 10 years or to the total duration of the loan.
74.      The referring court has not specified which aspects of the aforementioned provisions have led it to question their interpretation.
75.      When considering the wording of the question referred for a preliminary ruling, it is noted, however, on the one hand, that it is specified that the provisions of EU law in question relate to ‘fees for closing a payment account’ while it is stated, on the other hand, that the national legislation concerned allows, under certain conditions, the loss of an individual advantage in the event of closure of a payment account.
76.      I therefore understand the question referred as meaning that the Conseil d’État (Council of State) is asking, in essence, whether such a loss of the individual advantage represents fees for closing a payment account within the meaning of Directives 2007/64, 2015/2366 and 2014/92 and, as the case may be, whether the terms of that loss meet the conditions provided for in that regard by those directives.
77.      For that reason, even though the question referred, in its present form, concerns Article 45 of Directive 2007/64 and Article 55 of Directive 2015/2366 as a whole, as well as the provisions of Articles 9 to 14 of Directive 2014/92, I understand it as concerning, in reality, Article 45(2) of Directive 2007/64, replaced by Article 55(2) of Directive 2015/2366, and Article 12(3) of Directive 2014/92, relating to fees for closing a payment account.
78.      It is therefore necessary to verify whether those provisions preclude legislation such as that covered by the question referred.
79.      I note in this regard that, unlike the first question referred, which is based on the premiss that the legislation at issue in the main proceedings allows tying practices within the meaning of Directive 2014/17, (28) the second question does not indicate with the same degree of clarity whether that question is also based on that premiss. However, in view of the manner in which the second question is formulated, it seems to me that the legislation at issue concerns a bundling practice within the meaning of Directive 2014/17. (29) It is thus from that perspective that I shall examine the second question referred. (30)
80.      So far as concerns, in the first place, Directive 2007/64 harmonising payment services in the internal market, I take the view that it is applicable in the present case. (31)
81.      Article 45 of Directive 2007/64 is part of Chapter 3 of that directive, which is entitled ‘Framework contracts’, applicable to payment transactions covered by a framework contract. (32)
82.      In that context, Article 45, which is entitled ‘Termination’, provides in its paragraph 1 that the payment service user may terminate the framework contract at any time, unless the parties have agreed on a period of notice, which may not exceed one month. Paragraph 2 adds that the termination of a framework contract concluded for a fixed period exceeding 12 months or for an indefinite period is to be free of charge for the payment service user after the expiry of 12 months. The objective of that provision is to facilitate customer mobility. (33)
83.      In the present case, it should be noted that the legislation at issue in the main proceedings, while it allows bundling practices within the meaning of Directive 2014/17, establishes the conditions under which an individual advantage is conferred in the context of obtaining a loan.
84.      Accordingly, the loss of the advantage results from the application of a clause of the credit agreement between the parties, which makes the grant of that advantage conditional upon the borrower depositing his or her salary and income in a payment account.
85.      As the French and Czech Governments, and the Commission, argue in this regard, the loss of that advantage is merely the consequence of ceasing to deposit income in a payment account and is not therefore equivalent to fees for terminating a framework contract within the meaning of Article 45(2) of Directive 2007/64.
86.      The observations set out above are also valid in regard to Article 55(2) of Directive 2015/2366, the scope of which, with regard to the main proceedings, is identical to that of Directive 2007/64; (34) that provision is, in essence, identical to Article 45(2) of Directive 2007/64, except that the period concerned has been reduced from 12 to 6 months.
87.      So far as concerns, in the second place, Directive 2014/92, this adds to Directives 2007/64 and 2015/2366 in that it, inter alia, lays down rules concerning the switching of payment accounts within a Member State and rules to facilitate cross-border payment account-opening for consumers. (35)
88.      In that regard, pursuant to Article 12(3) of Directive 2014/92, Member States ensure that fees, if any, applied by the transferring payment service provider to the consumer for the termination of the payment account are determined in accordance with Article 45(2) of Directive 2007/64 and Article 55(2) of Directive 2015/2366. (36)
89.      As for Directive 2014/92, it is applicable to legislation such as that at issue in the main proceedings by virtue of its Article 1(6), interpreted in the light of recital 12. (37)
90.      However, in the light of the considerations set out above with regard to Article 55(2) of Directive 2014/92 and Article 45(2) of Directive 2007/64, it must be held that the loss of the individual advantage does not represent fees for closing a payment account within the meaning of Directive 2014/92.
91.      It follows from the foregoing that Article 45(2) of Directive 2007/64, Article 55(2) of Directive 2015/2366 and Article 12(3) of Directive 2014/92 do not preclude legislation such as that covered by the question referred.
V.      Conclusion
92.      In the light of the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, France) along the following lines:
(1)      Article 12(2)(a) of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 must be interpreted as meaning that it does not authorise national legislation allowing tying practices within the meaning of Article 4(26) of that directive, according to which the creditor may require the borrower, as consideration for an individual advantage, to deposit all of his or her salary or similar income in a payment account opened with that creditor during a period fixed by the credit agreement, in so far as that account may be used by the borrower to effect day-to-day payment transactions such as placing, transferring and withdrawing funds.
Article 12(3) of Directive 2014/17 must be interpreted as meaning that it does not authorise national legislation which allows tying practices within the meaning of Article 4(26) of that directive, in so far as that legislation does not ensure, on the one hand, that the tying practices result in a clear benefit to consumers or, on the other, that due account is taken of the availability and the prices of the relevant products offered on the market.
(2)      Article 45(2) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC, Article 55(2) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC, and Article 12(3) of Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features, must be interpreted as meaning that they do not preclude national legislation under which the closure of an account opened by the borrower with the creditor for the purposes of depositing his or her income as consideration for an individual advantage as part of a credit agreement results, if it occurs before the expiry of the period fixed in that agreement, in the loss of that advantage, including more than one year after the opening of the account and according to which the duration of that period may extend to 10 years or to the total duration of the loan.
1      Original language: French.
2      Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ 2014 L 60, p. 34, and corrigendum OJ 2015 L 246, p. 11).
3      Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1, and corrigendum OJ 2009 L 187, p. 5).
4      Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ 2015 L 337, p. 35, and corrigendum OJ 2018 L 102, p. 97).
5      Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (OJ 2014 L 257, p. 214).
6      In accordance with Article 114 of Directive 2015/2366, any reference to Directive 2007/64 is to be construed as a reference to Directive 2015/2366. Consequently, Article 12(3) of Directive 2014/92 refers, with effect from 13 January 2018, to Article 55(2), (4) and (6) of Directive 2015/2366, which replaced Article 45(2), (4) and (6) of Directive 2007/64.
7      Article L. 312‑1‑2 of the Monetary and Financial Code, set out in point 14 of this Opinion, prohibits, in essence, tying practices within the meaning of Article 4(26) of Directive 2014/17 and authorises bundling practices within the meaning of Article 4(27) of that directive. See, in this regard, footnote 15 of this Opinion.
8      Response of 23 October 2019 to the Court’s request for clarification of 26 September 2019.
9      In its response to the Court’s request for clarification (see footnote 8 of this Opinion), the referring court stated that Order No 2017‑1090 of 1 June 2017 was repealed by Article 206(XV) of Law No 2019‑486 of 22 May 2019 relating to the growth and transformation of companies, but that the fact remains that the decree at issue in the main proceedings was applied, this being the reason why the questions referred to the Court remain relevant.
10      Article 1 of Directive 2014/17.
11      Recital 15 of Directive 2014/17.
12      The concepts of ‘tying practice’ and ‘bundling practice’ are defined in Article 4(26) and (27) of Directive 2014/17 respectively; see those definitions set out in point 8 of this Opinion.
13      Although it is for the national court to interpret provisions of national law and therefore the scope of the legislation at issue in the main proceedings (see, inter alia, judgments of 26 September 2000, Mayeur, C‑175/99, EU:C:2000:505, paragraph 22; of 1 June 2006, innoventif, C‑453/04, EU:C:2006:361, paragraph 29; and of 8 July 2010, Sjöberg and Gerdin, C‑447/08 and C‑448/08, EU:C:2010:415, paragraph 54), I must admit, however, in the light of the documents before the Court, that, at first sight, the position taken by the French Government strikes me as convincing. In particular, it is apparent from the actual wording of Article L. 313‑25‑1 of the Consumer Code that credit institutions may make the loan offer conditional upon the borrower depositing his or her salary or similar income in a payment account as consideration for an individual advantage. In that regard, I would point out that, in so far as depositing salaries or similar income and, therefore, the payment account are not conditions for the grant of a loan offer as such, but only for the grant of an individual advantage, I take the view that this amounts to a bundling practice within the meaning of Article 4(27) of Directive 2014/17. In the present case, the loan represents the credit agreement, whereas the payment account represents the other financial product within the meaning of Article 4(27) of Directive 2014/17 and, as consideration for depositing salaries or similar income in a payment account, the credit agreement is made available ‘on different terms and conditions’ for the purposes of that provision, namely in the form of an individual advantage.
14      See footnote 8 of this Opinion.
15      In this context, I would point out, first, that it is apparent from the response to the request for clarification from the Court (see footnote 8 of this Opinion) that the referring court has doubts in this regard in spite of the fact that the national legal framework, on which the disputed order is based, namely Article 67 of Law No 2016‑1691 of 9 December 2016 on transparency, anti-corruption and economic modernisation, requires compliance with Article L. 312‑1‑2 of the Monetary and Financial Code which, according to the Conseil d’État (Council of State), allows bundling practices within the meaning of Article 4(27) of Directive 2014/17 but prohibits tying practices within the meaning of Article 4(26) of that directive. In this regard, I note, secondly, that the referring court’s doubts as to the scope of the national legislation at issue in the main proceedings appear to arise, in particular, from the fact that it is possible, in practice, for credit institutions to make the obtaining of the credit conditional upon depositing salaries or similar income and, therefore, upon obtaining a payment account, which amounts to a tying practice. In response to the Court’s request for clarification, the Conseil d’État (Council of State), referring to a report of January 2019 on depositing salaries or similar income into a payment account, prepared by the Chairman of the Financial Sector Advisory Committee at the request of the Minister for the Economy and Finance, cites two interested parties who have expressed views to that effect: the representatives of intermediaries consider that ‘in reality, it is not a question of consideration as such because cases observed to date have arisen due to labelling the schedule of standard rates as the “with deposit” grid and the addition of a new, weakened, “without deposit” grid or a prohibitive premium’. Likewise, the representatives of individual customers submit that ‘opening a bank account and the underwriting of various products (package, motor and household insurance) is often a precondition for granting credit relating to immovable property’. I add that, by contrast, the credit institutions indicate that customers can always choose not to deposit their income and therefore not to receive the individual advantage. I take the view that it is, however, necessary to distinguish between the issue of possible non-compliance by credit institutions with the legislation at issue in the main proceedings and the question of whether that legislation is, as such, compatible with EU law.
16      I note, however, that the Commission emphasised during the hearing that recital 24 of Directive 2014/17 contains further details in relation to the scope of the authorisation provided for in Article 12(1) of Directive 2014/17 with regard to bundling practices. That recital states that restrictions should not be placed on product bundling which can be beneficial to consumers, but that Member States should, however, continue monitoring retail financial services markets closely to ensure that bundling practices do not distort consumer choice and competition in the market. Consequently, authorising such practices should always be done in the interest of the consumer and fair competition and the legislature should, in that context, prevent situations that are contrary to the interests of consumers.
17      Since the question referred would then be irrelevant, I would point out, for the sake of completeness, that the question raised is nonetheless admissible. Having regard, in particular, to the fact that it is not inconceivable that the legislation at issue in the main proceedings amounts to a tying practice, it should be considered that the answer to the question referred must be regarded as useful to the referring court for the purpose of resolving the dispute in the main proceedings and is, therefore, admissible. See, to that effect, inter alia, judgments of 27 October 1993, Enderby (C‑127/92, EU:C:1993:859, paragraphs 11 and 12); of 7 December 2010, VEBIC (C‑439/08, EU:C:2010:739, paragraphs 44 to 48); and of 2 May 2019, A‑Fonds (C‑598/17, EU:C:2019:352, paragraphs 34 to 40).
18      In accordance with the definition of tying practice set out in Article 4(26) of Directive 2014/17, this implies that the credit agreement is not offered to the consumer separately from the payment account and therefore that the requirement to deposit salaries or similar income into that account is a condition for obtaining the credit in the first place.
19      I note that the provision set out in Article 12 of Directive 2014/17 was not included in the draft directive presented by the Commission (COM (2011) 142 final) but that it was inserted at the European Parliament’s first reading.
20      I would point out that the French Government claims, as its principal argument, that the legislation at issue in the main proceedings allows bundling practices (see point 37 of this Opinion).
21      See point 21 of this Opinion.
22      In this regard, I also note that it is apparent from the report of January 2019 on depositing salaries or similar income into a payment account, prepared by the Chairman of the Financial Sector Advisory Committee at the request of the Minister for the Economy and Finance, to which the referring court refers in its response to the Court’s request for clarification, that ‘in particular, the requirement to deposit income could provide useful additional security during the examination of the credit application’. That observation does not allow conclusions to be drawn as to whether the purpose of the legislation at issue is covered by one of the objectives set out in Article 12(2)(a) of Directive 2014/17.
23      See, to that effect, inter alia, judgment of 10 September 2014, Kušionová (C‑34/13, EU:C:2014:2189, paragraph 77).
24      Article 1(6) of Directive 2014/92, read in conjunction with recital 12 thereof.
25      See, to that effect, inter alia, judgment of 4 June 2009, SALIX Grundstücks-Vermietungsgesellschaft (C‑102/08, EU:C:2009:345, paragraphs 40 to 42 and the case-law cited). I note that that case-law also applies to the transposition of optional derogations, such as Article 12(3) of Directive 2014/17. See, to that effect, inter alia, judgment of 21 October 2010, Accardo and Others (C‑227/09, EU:C:2010:624, paragraph 55).
26      The fact that, in accordance with the legislation at issue in the main proceedings, the offer must identify clearly the individual advantage by stating the conditions, rates and other terms under which it is established and which the creditor would apply if the requirement to deposit salaries or similar income were not met by the borrower (Article L. 313‑25 of the Consumer Code) cannot call this finding into question.
27      See, in this regard, footnote 23 of this Opinion.
28      See point 36 of this Opinion.
29      Inasmuch as the closure of an account opened by the borrower with the creditor for the purposes of depositing his or her income as consideration for an individual advantage results only in the loss of that advantage, this constitutes, to my mind, a bundling practice within the meaning of Directive 2014/17; see footnote 13 of the present Opinion.
30      Furthermore, as it follows from my reply to the first question referred that the legislation at issue in the main proceedings is prohibited by reason of Directive 2014/17, in so far as that legislation permits a tying practice within the meaning of that directive, no purpose would be served by examining also whether such legislation is compatible with the provisions covered by the second question referred.
31      According to Article 2(1) of Directive 2007/64, that directive applies to ‘payment services’ provided within the European Union. The concept of ‘payment services’ is defined in Article 4(3) of that directive as any business activity listed in the Annex. Paragraph 1 of the Annex refers to ‘services enabling cash to be placed on a payment account as well as all the operations required for operating a payment account’.
32      Article 40 of Directive 2007/64. A framework contract is defined in Article 4(12) of that directive as a payment service contract which governs the future execution of individual and successive payment transactions and which may contain the obligation and conditions for setting up a payment account.
33      See recital 29 of Directive 2007/64.
34      See Article 2(1) of Directive 2015/2366, read in conjunction with Article 4(3) and the annex to that directive.
35      See recital 2 of Directive 2014/92 and Article 1 of that directive.
36      See footnote 6 of this Opinion.
37      I would point out that the concept of ‘payment account’ within the meaning of Article L. 313‑25‑1 of the Consumer Code also covers accounts used by borrowers to effect and receive day-to-day payment transactions. In that regard, recital 12 of Directive 2014/92, cited in point 10 of this Opinion, specifies the scope of the directive as provided for in Article 1(6). It follows, in essence, from this specification that the directive applies to a payment account the sole purpose of which is to repay a current account mortgage where that account is also used for day-to-day payment transactions.