CELEX: 62002CJ0264
Language: en
Date: 2004-03-04 00:00:00
Title: Judgment of the Court (Fifth Chamber) of 4 March 2004. # Cofinoga Mérignac SA v Sylvain Sachithanathan. # Reference for a preliminary ruling: Tribunal d'instance de Vienne - France. # Directives 87/102/EEC and 90/88/EEC - Consumer credit - Consumer information - Annual percentage rate of charge - Variable interest rate - Renewal of an agreement. # Case C-264/02.

Case C-264/02
      Cofinoga Mérignac SA
      v
      Sylvain Sachithanathan
      (Reference for a preliminary ruling from the Tribunal d’instance de Vienne)
      (Directives 87/102/EEC and 90/88/EEC – Consumer credit – Consumer information – Annual percentage rate of charge – Variable interest rate – Renewal of an agreement)
      Summary of the Judgment
      Approximation of laws – Consumer protection in respect of consumer credit – Directive 87/102 – Consumer information – Obligation
            to provide information before each renewal of a credit agreement – None
      (Council Directive 87/102)
      Directive 87/02 for the approximation of the laws, regulations, and administrative provisions of the Member States concerning
         consumer credit does not require, before each renewal, on the existing terms and conditions, of a credit agreement for a specified
         period entered in the form of a credit facility that may be drawn down in instalments and is linked to a credit card, that
         is repayable in monthly instalments and bears an interest rate that is expressed to be variable, that the lender inform the
         borrower in writing of the current annual percentage rate of charge and of the conditions under which the latter may be amended.
      
      (see para. 39, operative part)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Fifth Chamber)4 March 2004(1)
         
         
               (Directives 87/102/EEC and 90/88/EEC  –  Consumer credit  –  Consumer information  –  Annual percentage rate of charge  –  Variable interest rate  –  Renewal of an agreement)
               
             In Case C-264/02, 
             REFERENCE to the Court under Article 234 EC by the Tribunal d'instance de Vienne (France) for a preliminary ruling in the
            proceedings pending before that court between 
            
            
            
            Cofinoga Mérignac SA
            
            and
            
            Sylvain Sachithanathan,
            
             on the interpretation of Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and
            administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48), as amended by Council Directive
            90/88/EEC of 22 February 1990 (OJ 1990 L 61, p. 14),
            
            THE COURT (Fifth Chamber),,
            
             composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, C.W.A. Timmermans and S. von Bahr, Judges,
            
             Advocate General: A. Tizzano, Registrar: M. Múgica Arzamendi, Principal Administrator, 
            
            
            after considering the written observations submitted on behalf of:
               
               –
                Cofinoga Mérignac SA, by J.-J. Gatineau, avocat, 
               
               –
                the French Government, by G. de Bergues and R. Loosli Surrans, acting as Agents, 
               
               –
                the Belgian Government, by A. Snoecx, acting as Agent, 
               
               –
                the United Kingdom Government, by P. Ormond and J. Turner, acting as Agents, 
               
               –
                the Commission of the European Communities, by M.-J. Jonczy and M. França, acting as Agents,
               
               
            
            
            
            
            after hearing the oral observations of Cofinoga Mérignac SA, represented by  J.-J. Gatineau, the French Government, represented
               by C. Lemaire, acting as Agent, and the Commission, represented by M.-J. Jonczy, at the hearing on 3 July 2003,
            
            
            after hearing the Opinion of the Advocate General at the sitting on 25 September 2003,
         gives the following
         
         
         Judgment
         1
            
          By judgment of 5 July 2002, received at the Court on 18 July 2002, the Tribunal d’instance de Vienne (Vienne District Court)
         referred to the Court for a preliminary ruling under Article 234 EC four questions on the interpretation of Council Directive
         87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member
         States concerning consumer credit (OJ 1987 L 42, p. 48), as amended by Council Directive 90/88/EEC of 22 February 1990 (OJ
         1990 L 61, p. 14) (hereinafter ‘the Directive’).
         
         
         
         2
            
          These questions have been raised in proceedings between Cofinoga Mérignac SA (hereinafter ‘Cofinoga’), a company incorporated
         under French law, and Mr Sachithanathan concerning the payment of sums due under an agreement entered into by the latter with
         that company. 
         
         
            
               Legal background
            Community legislation
         
         3
            
          Article 1(2)(c) of the Directive provides that it applies to credit agreements, which are defined as agreements whereby ‘a
         creditor grants or promises to grant to a consumer a credit in the form of a deferred payment, a loan or other similar financial
         accommodation’.
         
         
         
         4
            
          Article 2(1) of the Directive states that: 
         ‘This Directive shall not apply to: 
         …
         (e)     credit in the form of advances on a current account granted by a credit institution or financial institution other than on
         credit card accounts.
          Nevertheless, the provisions of Article 6 shall apply to such credits;
         … .’
         
         
         
         5
            
          Article 3 of the Directive provides that any advertisement in which a person offers credit or offers to arrange a credit agreement,
         and in which any figures relating to the cost of the credit are indicated, must also include a statement of the annual percentage
         rate of charge (hereinafter the ‘APR’).
         
         
         
         6
            
          Article 4(1) and (2) of the Directive states that:
         ‘1.     Credit agreements shall be made in writing. The consumer shall receive a copy of the written agreement.
          2.       The written agreement shall include:
         (a)     a statement of the [APR];
         (b)     a statement of the conditions under which the [APR] may be amended.
          In cases where it is not possible to state the [APR], the consumer shall be provided with adequate information in the written
         agreement. This information shall at least include the information provided for in the second indent of Article 6(1).’
         
         
         
         7
            
          Article 1a(1)(a) of the Directive provides that the APR is to be calculated in accordance with the mathematical formula set
         out in an annex.  Article 1a(4)(a) states that the APR  is to be calculated ‘at the time the credit contract is concluded’.
         
         
         
         8
            
          Article 6(1) and (2) of the Directive states that:
         ‘1.     Notwithstanding the exclusion provided for in Article 2(1)(e), where there is an agreement between a credit institution or
         financial institution and a consumer for the granting of credit in the form of an advance on a current account, other than
         on credit card accounts, the consumer shall be informed at the time or before the agreement is concluded:
         
         
         
          
         –
            of the credit limit, if any,
         
         
         
         
          
         –
            of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under
               which these may be amended,
            
         
         
         
         
          
         –
            of the procedure for terminating the agreement.
         
         
          This information shall be confirmed in writing.
          2.       Furthermore, during the period of the agreement, the consumer shall be informed of any change in the annual rate of interest
         or in the relevant charges at the time it occurs. …
         …’
         
         National law
         
         9
            
          The principal provisions relating to consumer credit are to be found in Articles L. 311-1 to L. 311-37 of the Code de la consommation
         (Consumer Code). The provisions that are relevant to the main proceedings are as follows:
          Article L. 311-8:
         ‘Credit transactions … shall be concluded in accordance with the terms set out in a preliminary offer which shall be provided
         to the borrower in duplicate …’
          Article L. 311-9:
         ‘Where credit is granted, whether or not linked to the use of a credit card, which allows the borrower to draw down the amount
         of the loan in instalments on dates of his choosing, the preliminary offer is only required for the initial agreement.
          It shall state that the duration of the agreement is limited to one year, with the possibility of renewal, and that the lender
         must notify the conditions for renewal of the agreement three months before its expiry. …’
          Article L. 311-10:
         ‘The preliminary offer:
         …
         (2)     Shall specify the amount of the credit … and, if applicable, the percentage rate of charge and total sums payable in addition
         to interest. …
         …’
          Article L. 311-37:
         ‘The Tribunal d’instance shall have jurisdiction to hear disputes arising from the application of this chapter. Actions brought
         before it must be raised within two years of the event which gave rise to them and shall otherwise be time-barred ...’
         
         
         
         10
            
          According to the information provided by the national court, the renewal of a credit agreement is treated in French law not
         as the extension of the original agreement, but as the entering into of a new agreement.
         
         The main proceedings and the questions referred
         
         11
            
          Under an agreement dated 1 July 1993, Cofinoga granted a loan to Mr Sachithanathan in the form of a credit facility for a
         period of one year, with the possibility of renewal, available for drawdown in instalments and linked to a credit card, repayable
         in monthly instalments at an APR that was expressed to be variable.
         
         
         
         12
            
          As sums owing remained unpaid, Cofinoga brought proceedings against Mr Sachithanathan before the Tribunal d’instance de Vienne
         on 19 November 2001 for payment of the amounts due, together with interest and penalties. Mr Sachithanathan did not enter
         an appearance.
         
         
         
         13
            
          The Tribunal d’instance de Vienne asked Cofinoga to provide evidence that the agreement had been properly renewed following
         the expiry of the initial term of one year, as required by Article L. 311-9 of the Consumer Code.
         
         
         
         14
            
          Having considered Cofinoga’s observations, the Tribunal d’instance de Vienne decided to stay the proceedings and to refer
         the following questions to the Court for a preliminary ruling:
         
         ‘1.
            On a proper construction of [Council Directives 87/102 and 90/88], must a national court uphold the interpretation of its
               law which requires institutions which lend consumer credit to inform a borrower-consumer in writing of the current [APR] before
               each extension of a renewable agreement for credit that is drawable in instalments and bears interest at a rate that is expressed
               to be variable?
            
         
         
         2.
            On a proper construction of those directives, must the national court uphold the interpretation of its law which requires
               lending institutions to inform that consumer of the clause concerning the variation of that [APR] before each extension of
               such an agreement?
            
         
         
         3.
            On a proper construction of those directives, is the national court to uphold the interpretation of its law which permits
               it to allow, without any time-limit, a plea of illegality vitiating the formation or extension of a consumer credit agreement,
               such as that arising from a failure to state the [APR], raised by the consumer or by the court of its own motion, in a dispute
               arising from an action for payment brought by the lending institution?
            
         
         
         4.
            If not, must the national court, on a proper construction of those directives, uphold the interpretation of its law which
               permits it to set aside a provision of its national law which prohibits the consumer or the court of its own motion from raising
               a plea of illegality vitiating the formation or extension of a consumer credit agreement after a time-limit which derogates
               from the general law, on the grounds that this would constitute an exceptional restriction on the right of action of the consumer
               and undermine the effectiveness of consumer protection?’
            
         
         
         The questions referredThe first and second questions
         
         15
            
          By these two questions, the national court is essentially asking whether the Directive should be interpreted as meaning that
         before each renewal, on the existing terms and conditions, of a credit agreement for a specified period entered into in the
         form of a credit facility that may be drawn down in instalments and is linked to a credit card, that is repayable in monthly
         instalments and bears an interest rate that is expressed to be variable, the lender is obliged to inform the borrower in writing
         of the current APR and the conditions under which it may be amended.
         
          Observations submitted to the Court
         
         
         16
            
          Cofinoga and the French Government are of the opinion that the reply to these questions should be in the negative. The United
         Kingdom Government shares this view, at least where the renewal of the agreement falls to be treated as an extension of the
         original agreement.
         
         
         
         17
            
          In their view, in a case such as that of the disputed agreement, the lender’s obligations to provide information under Article
         4 of the Directive do not apply to the renewal of the agreement. They rely in that regard both on the wording of Article 4
         of the Directive, which makes it clear that it refers to the time when the agreement is entered into, and on the purpose of
         that article, which is to enable the consumer to assess the cost of the credit and compare it with other offers before committing
         himself.
         
         
         
         18
            
          Cofinoga and the French and United Kingdom Governments take the view, though for different reasons, that the lender’s obligations
         to provide information under Article 6 of the Directive are also inapplicable in the circumstances of the main proceedings.
         According to Cofinoga and the United Kingdom Government, that article does not apply because its scope is restricted to advances
         on a current account, except for advances linked to credit cards, which is not the case under the disputed agreement. In the
         opinion of the French Government, Article 6 of the Directive lays down a general rule, applicable to all agreements covered
         by the Directive, but which is relevant only where the agreement is amended. This does not apply to the renewal of the disputed
         agreement.
         
         
         
         19
            
          For their part, the Belgian Government and the Commission propose that the reply to the first two questions should be in the
         affirmative.
         
         
         
         20
            
          The Belgian Government, amplifying the concerns expressed by the United Kingdom Government, observes that in French law the
         renewal of a credit agreement is treated as the entering into of a new agreement. It follows, in its view, that the lender
         must provide the information required by Article 4 of the Directive on each renewal of the agreement.
         
         
         
         21
            
          The Commission is of the opinion that Articles 4 and 6 of the Directive lay down two sets of general rules and should for
         that reason be interpreted cumulatively. Noting that Article 4 provides that the agreement must be made in writing and include
         a statement of the APR, and that Article 6 provides that the consumer is to be informed, during the period of the agreement,
         of any change in the annual rate of interest or in the relevant charges at the time when it occurs, the Commission concludes
         that the consumer should be informed before each extension of the agreement of any change in the rate of interest.
         
          Reply by the Court
         
         
         22
            
          In the light of the observations submitted to the Court, the first issue to be considered is whether Article 4 of the Directive
         should be interpreted as meaning that, where a credit agreement is renewed on the existing terms and conditions, the lender
         is required to inform the consumer of the APR.
         
         
         
         23
            
          The wording of Article 4 of the Directive does not indicate expressly when the information required under it is to be provided
         to the consumer. Nevertheless, the broad logic of this provision leaves the matter in no doubt. In providing that the credit
         agreement must be made in writing and that the written agreement must include a statement of the APR and the conditions under
         which it may be amended, Article 4(1) and (2) of the Directive clearly refers to the time when the agreement is entered into.
         This interpretation is supported by Article 1a of the Directive, which lays down rules for calculating the APR, and which
         states at paragraph (4)(a) that this is to be calculated ‘at the time the credit contract is concluded’.
         
         
         
         24
            
          As neither the wording of Article 4 of the Directive nor the broad logic of the scheme established by that provision support
         an interpretation according to which the consumer must be informed of the APR on the renewal of a credit agreement on the
         existing terms and conditions, the issue arises whether the ends pursued by the Directive require that the consumer be informed
         at this time.
         
         
         
         25
            
          It should be noted in that regard that it is clear from the recitals in the preamble thereto that the Directive was adopted
         with the dual aim of ensuring both the creation of a common market in consumer credit (third to fifth recitals) and the protection
         of consumers who avail themselves of such credit (sixth, seventh and ninth recitals) (Case C-208/98 Berliner Kindl Brauerei [2000] ECR I-1741, paragraph 20).
         
         
         
         26
            
          Informing the consumer of the total cost of credit, in the form of an interest rate calculated according to a single mathematical
         formula, is of critical importance in this regard. First, this information, which, under Article 3 of the Directive, must
         be stated in any advertising, contributes to the transparency of the market, as it enables the consumer to compare offers
         of credit. Secondly, it enables the consumer to assess the extent of his liability.
         
         
         
         27
            
          In the light of these aims, and as the Advocate General has noted in point 53 of his Opinion, it appears that the information
         in question will be particularly useful if it is provided to the consumer at the decisive phase which precedes the entering
         into of the agreement. Thereafter, for example when the agreement is renewed on its existing terms and conditions, this information,
         which has already been provided, would appear to be of less importance.
         
         
         
         28
            
          It follows that, in the absence of express provision to that effect, and in the absence of factors which, on the basis of
         the broad logic or the aims of the Directive, might lead to the inference that Article 4 of the Directive should be broadly
         construed, that provision cannot be interpreted as meaning that it requires the lender to inform the consumer of the APR prior
         to the renewal of a credit agreement on the existing terms and conditions.
         
         
         
         29
            
          The fact that, according to the information provided by the national court, the renewal of a credit agreement is treated in
         French law not as the extension of the original agreement, but as the entering into of a new agreement, does not affect this
         analysis. As the Advocate General points out in point 43 of his Opinion, the objective of harmonisation underlying the Directive
         would be frustrated if the interpretation of the rules laid down under it were to depend on the specific provisions of the
         national law of a particular Member State.
         
         
         
         30
            
          In the light of the interpretation to be given to Article 4 of the Directive, it is then appropriate to consider whether Article
         6 of the Directive should be interpreted as meaning that, where a credit agreement is renewed on the existing terms and conditions,
         the lender is required to inform the consumer of the APR. 
         
         
         
         31
            
          Having regard to the observations submitted to the Court, the scope of that provision must first be determined.
         
         
         
         32
            
          Article 6(1) of the Directive states that: ‘notwithstanding the exclusion provided for in Article 2(1)(e), where there is
         an agreement between a credit institution or financial institution and a consumer for the granting of credit in the form of
         an advance on a current account, other than on credit card accounts’, the consumer must be informed ‘at the time or before
         the agreement is concluded’ of those terms and conditions of the agreement specified in the remainder of the provision. Article
         6(2) adds that: ‘furthermore, during the period of the agreement, the consumer shall be informed of any change in the annual
         rate of interest or in the relevant charges at the time it occurs’. It is thus clear from the wording of Article 6 that Article
         6(2) refers to the same agreements as those covered by Article 6(1).
         
         
         
         33
            
          It is also equally clear from the wording of Articles 2, 4 and 6 of the Directive that the broad logic of the scheme which
         they establish means that Article 6 lays down a special rule applicable to a type of agreement which is otherwise excluded
         from the scope of the general rules laid down under the Directive.
         
         
         
         34
            
          Article 2(1)(e) of the Directive excludes from its scope credit granted in the form of advances on a current account other
         than on credit card accounts. For credit granted in the form of advances on a current account, Article 6(2) of the Directive
         obliges the lender to provide the consumer with information which is not required under Article 4 of the same directive, while
         Article 6(1) obliges the lender to provide to the consumer the information specified in it, which does not include the APR.
         
         
         
         35
            
          Furthermore, the second subparagraph of Article 4(2) of the Directive provides that in cases where it is not possible to state
         the APR at the time at which the agreement is entered into, the consumer should none the less be provided with ‘adequate information’
         in the written agreement, including ‘at least … the information provided for in the second indent of Article 6(1)’. As the
         Advocate General has noted in point 73 of his Opinion, there would be no need whatever for an express reference of this kind
         if Article 6 applied in its own right to all agreements subject to the Directive.
         
         
         
         36
            
          It follows that Article 6 applies only to those agreements expressly referred to in it, that is to say, credits in the form
         of an advance on a current account, other than on credit card accounts.
         
         
         
         37
            
          It is common ground that the disputed agreement does not fall within that category.
         
         
         
         38
            
          That being so, the rules laid down under Article 6 of the Directive cannot be relevant for determining the obligations to
         provide information imposed on the lender in a case such as that which is the subject of the main proceedings.
         
         
         
         39
            
          In the light of the foregoing, the answer to the first and second questions must be that the Directive does not require, before
         each renewal, on the existing terms and conditions, of a credit agreement for a specified period entered into in the form
         of a credit facility that may be drawn down in instalments and is linked to a credit card, that is repayable in monthly instalments
         and bears an interest rate that is expressed to be variable, that the lender inform the borrower in writing of the current
         APR and of the conditions under which the latter may be amended.
         
         The third and fourth questions
         
         40
            
          In light of the answer to the first and second questions, there is no need to reply to the third and fourth questions.
         
         
         Costs
         41
            
          The costs incurred by the French, Belgian and United Kingdom Governments and by the Commission, which have submitted observations
         to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings
         pending before the national court, the decision on costs is a matter for that court.
         
         
         On those grounds, 
         
         
         
            
            THE COURT (Fifth Chamber),
         
         
          in answer to the questions referred to it by the Tribunal d’instance de Vienne by judgment of 5 July 2002, hereby rules:
         
                  Jann
               
               
                  Timmermans 
               
               
                  von Bahr
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 4 March 2004.
         
         
         
         
                  R. Grass
               
               
                  V. Skouris
               
            
         
         
         
                  Registrar
               
               
                  President of the Fifth Chamber
               
            
      
      
          1 –
            
            Language of the case: French.