Case C-565/12: Judgment of the Court (Fourth Chamber) of 27 March 2014 (request for a preliminary ruling from the Tribunal d’instance d’Orléans — France) — LCL Le Crédit Lyonnais SA v Fesih Kalhan (Consumer protection — Credit agreements for consumers — Directive 2008/48/EC — Articles 8 and 23 — Creditor’s obligation to assess the borrower’s creditworthiness prior to conclusion of the agreement — National provision imposing the obligation to consult a database — Forfeiture of entitlement to contractual interest in the event of failure to comply with that obligation — Effective, proportionate and dissuasive nature of the penalty)
Date: 2014-03-27
Institutions: Court of Justice
Subjects: consumer credit, consumer protection, database, financial solvency, national law, unfair terms of contract








C_2014151EN.01000401.xml










19.5.2014   


EN


Official Journal of the European Union


C 151/4





Judgment of the Court (Fourth Chamber) of 27 March 2014 (request for a preliminary ruling from the Tribunal d’instance d’Orléans — France) — LCL Le Crédit Lyonnais SA v Fesih Kalhan
(Case C-565/12) (1)

((Consumer protection - Credit agreements for consumers - Directive 2008/48/EC - Articles 8 and 23 - Creditor’s obligation to assess the borrower’s creditworthiness prior to conclusion of the agreement - National provision imposing the obligation to consult a database - Forfeiture of entitlement to contractual interest in the event of failure to comply with that obligation - Effective, proportionate and dissuasive nature of the penalty))
2014/C 151/04
Language of the case: French

Referring court

Tribunal d’instance d’Orléans

Parties to the main proceedings


Applicant: LCL Le Crédit Lyonnais SA

Defendant: Fesih Kalhan

Re:

Request for a preliminary ruling — Tribunal d’instance d’Orléans — Interpretation of Article 23 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), in the light of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) — Credit institution’s obligation to check the borrower’s creditworthiness — Requirement for effective, proportionate and dissuasive penalties in the event of the creditor’s failure to fulfil that obligation — Forfeiture of entitlement to contractual interest — Whether it is permissible to maintain for the creditor’s benefit statutory interest that becomes payable by operation of law at an increased statutory rate

Operative part of the judgment

Article 23 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 precluding the application of a national system of penalties under which, in the event of failure on the part of the creditor to comply with its obligation, prior to conclusion of an agreement, to assess the borrower’s creditworthiness by consulting the relevant database, that creditor forfeits its entitlement to contractual interest but is automatically entitled to interest at the statutory rate, payable from the date of delivery of a court decision ordering that borrower to pay the outstanding sums, which is further increased by five percentage points if, on expiry of a period of two months following that decision, the borrower has not repaid his debt in full, where the referring court finds that — in a case such as that in the main proceedings, in which the outstanding amount of the principal of the loan is immediately payable as a result of the borrower’s default — the amounts which the creditor is in fact likely to receive following the application of the penalty of forfeiture of entitlement to contractual interest are not significantly lower than those which it could have received had it complied with its obligation to assess the borrower’s creditworthiness.


(1)  OJ C 38, 9.2.2013.