CELEX: 61994CC0192
Language: en
Date: 1995-12-07 00:00:00
Title: Opinion of Mr Advocate General Lenz delivered on 7 December 1995. # El Corte Inglés SA v Cristina Blázquez Rivero. # Reference for a preliminary ruling: Juzgado de Primera Instancia n. 10 de Sevilla - Spain. # Direct effect of unimplemented directive - Council Directive 87/102/EEC concerning consumer credit. # Case C-192/94.

OPINION OF ADVOCATE GENERALLENZ delivered on 7 December 1995  (1)
         Case C-192/94 El Corte Inglés, S.A.vCristina Blázquez Rivero(Reference for a preliminary ruling from the 10th Juzgado de Primera Instancia Sevilla)
            ((Effects of unimplemented directives – Council Directive 87/102/EEC concerning consumer credit))
            
      
         
      
      A
         
       
      
      
      ─
      Introduction 
      
      
      
      1.  This reference for a preliminary ruling from a Juzgado de Primera Instancia (Court of First Instance), Seville, is concerned
      with whether Article 11 of Council Directive 87/102/EEC for the approximation of the laws, regulations and administrative
      provisions of the Member States concerning consumer credit  
      
         			(2)
         		 (
      the directive) is directly applicable in proceedings between a consumer and a grantor of credit where the date for implementing the directive
      (1 January 1990) had expired yet it had not been transposed into Spanish law.  Consequently, these proceedings are concerned
      once again with the question of the direct applicability of a directive in relations between private persons, with which the
      Court has had to deal repeatedly, most recently in the judgment of 14 July 1994 in  
       Faccini Dori .  
      
         			(3)
         		 However, to date the Court has refused to hold that directives have such so-called horizontal direct effect.
      
      2.  The origin of the dispute is a credit agreement which the defendant in the main proceedings entered into in order to finance
      part of the consideration for a travel contract, where there was an agreement between the travel agent with which the travel
      contract was concluded and the company granting the credit under which the latter had the exclusive right to grant credit.
       Because of shortcomings in the service provided under the travel contract, the defendant in the main proceedings ceased paying
      instalments on the loan.
      
      3.  The national court seeks a ruling on whether the directive may be directly applicable in the defendant's favour.  By order
      of 30 June 1994, it referred the following question to the Court for a preliminary ruling:Is Article 11 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, which has not been implemented in national law by the Spanish
      State, directly applicable in a case where a consumer seeks to rely, against a claim by the grantor of credit, on the defects
      in the service supplied by the supplier with whom the said grantor of credit has concluded an exclusive agreement for granting
      credit to his customers?
      
      4.  After the request for a preliminary ruling was received at the Court, the judgment in  
       Faccini Dori 
         			(4)
         		 was delivered, in which the Court answered the fundamental question relating to the horizontal direct effect of directives.
       That judgment was forwarded to the national court, which, when asked whether a ruling from the Court was still necessary
      in the instant case, stated that it wished to maintain its request for a preliminary ruling.  Although the judgment in  
       Faccini Dori  basically answered the question as to whether directives could also have horizontal direct effect, doubts still remained
      as to whether the case-law should not be amended as a result of the addition of Article 129a to the EC Treaty by the Treaty
      on European Union.  Article 129a requires the Community to contribute to the attainment of a high level of consumer protection.
      
      5.  In the course of the proceedings, written observations have been received from the plaintiff in the main proceedings, the
      Spanish and the French Governments and the Commission.  All those participating in the proceedings agreed that there should
      not be a hearing.
      
      B
         
       
      
      
      ─
      Opinion 
      
      
      
      
      
      6.  It appears from the order for reference that the national court has difficulty in assisting Community law to achieve practical
      effectiveness.  The provision which it deems relevant had not been transposed into national law at the material time, even
      though the prescribed period for implementing it had expired.It would seem that there are no specific provisions of Spanish law to cover the material facts.  It has to be assumed that
      there is a lacuna in Spanish law, which means that the national court could not give effect to the Community provision either
      by interpreting or by disapplying its national law.  If the general rules of Spanish civil law were applied to the case, the
      outcome would conflict with the aims of the directive, since under national law a contract between two persons in principle
      cannot effect legal relations with a third party.  Consequently, on the basis of the Court's case-law to date, the national
      court can see no way of securing the effectiveness of Community law, unless the provisions of an unimplemented directive on
      consumer protection could be applied to horizontal legal relations in conjunction with the recently introduced provision of
      Article 129a of the EC Treaty.
      
      7.  All those participating in the proceedings ─ the plaintiff in the main proceedings (the credit institution which brought the
      proceedings), the Spanish and the French Governments and the Commission ─ claim that the case-law to date should be adhered
      to.
      
      I. Whether Article 11 of the directive is sufficiently precise and unconditional
      
      8.  The essential requirement which a directive must satisfy in order to have direct effect is that it must be sufficiently precise
      and unconditional as to enable rights to be derived from it directly for individuals.  Article 11 of Directive 87/102 ─ at
      issue in these proceedings ─ reads as follows: 
      1.  Member States shall ensure that the existence of a credit agreement shall not in any way affect the rights of the consumer
      against the supplier of goods or services purchased by means of such an agreement in cases where the goods or services are
      not supplied or are otherwise not in conformity with the contract for their supply.
      
      2.  Where:
      (a) in order to buy goods or obtain services the consumer enters into a credit agreement with a person other than the supplier
      of them;
      and
      (b) the grantor of the credit and the supplier of the goods or services have a pre-existing agreement whereunder credit is made
      available exclusively by that grantor of credit to customers of that supplier for the acquisition of goods or services from
      that supplier; and
      
      (c) the consumer referred to in subparagraph (a) obtains his credit pursuant to that pre-existing agreement; and
      
      (d) the goods or services covered by the credit agreement are not supplied, or are supplied only in part, or are not in conformity
      with the contract for supply of them; and
      
      (e) the consumer has pursued his remedies against the supplier but has failed to obtain the satisfaction to which he is entitled,
      the consumer shall have the right to pursue remedies against the grantor of credit. Member States shall determine to what
      extent and under what conditions these remedies shall be exercisable.
      
      3.  Paragraph 2 shall not apply where the individual transaction in question is for an amount less than the equivalent of 200
      ECU.
      
      
      9.  Consequently, as a result of the particularly relevant provision in this case, Article 11(2), whether it is possible for the
      consumer to pursue remedies against the grantor of credit depends upon specific requirements which do not leave the Member
      States any leeway in implementation.
      
      10.  What might, however, suggest that the provision is not sufficiently precise and unconditional is ─ as the plaintiff in the
      main proceedings argues ─ that the second sentence of Article 11(2) provides for a certain discretion on the part of the Member
      States with regard to how the consumer can pursue his remedies ─ that is to say, as regards the form, the extent and the conditions.
       It may possibly follow from this that the legal position of the consumer will depend on the national implementing provision,
      with the result that Article 11 of the directive alone is not sufficiently specific.
      
      11.  It should be observed in this connection that Article 11(2) must be seen in the context of the provisions of the directive.
       Article 11(1) lays down a clear aim for the Member States in that it prohibits the consumer's being disadvantaged in any
      way as a result of the severance of a credit agreement from the transaction financed thereby.  It follows from this, however,
      as regards Article 11(2) that the Member States have no discretion as to  
       whether  the consumer is to be enabled to pursue remedies against the grantor of credit.  Member States are intended to have a free
      rein only with regard to  
       how  this takes place or, in other words, with regard to the actual configuration from the technical legal point of view of the
      legal position (consumer claim, defence, etc).
      
      12.  It appears from the context of the provisions of the directive that the basic grant of a legal position for the consumer is
      to be governed by Community law.  In particular, the first to the fourth recitals in the preamble to the directive mention
      the aim of approximating the law in the interest of avoiding distortions of competition.  
      
         			(5)
         		  Consequently, the basic question of granting protective rights for consumers is not left to the discretion of the Member
      States.  This means that Article 11 of the directive can be regarded as being sufficiently precise and unconditional inasmuch
      as the consumer is to be afforded in any event the legal position referred to therein.
      
      13.  The discretion afforded to the Member States by the second sentence of Article 11(2) with regard to what extent and under
      what conditions the remedies are to be exercisable is therefore limited.  As appears from Article 11(1) of the directive,
      the consumer may not in any event be in a worse position than he would have been had the credit agreement concluded in order
      to finance the underlying contract formed part of that contract.  The remedies which the consumer may assert against the grantor
      of the credit must, in qualitative terms, at least not be worse that those available to him directly against the other party
      to the contract in respect of the transaction being financed.  It follows that Article 11(2) of the directive is sufficiently
      precise and unconditional also in so far as the consumer is entitled to a certain minimum standard when it comes to asserting
      his remedies.
      
      II. The so-called horizontal effect of Article 11 of the directive
      
      14.  The question raised by the national court in its reference for a preliminary ruling essentially seeks to establish whether
      Article 11 of the directive can be applied directly in litigation between a consumer and a grantor of credit ─ that is to
      say, in legal relations between private persons ─ where the directive has not been transposed into national law within the
      prescribed period.
      
      15.  It should be considered  
       in limine  whether a national court is entitled to apply a provision of a directive which is directly applicable even where the beneficiary
      of the provision does not  
      rely on the provision.  In the leading cases of the Court concerning the direct applicability of directives, direct effect constitutes
      a claim which the beneficiary is entitled to assert against the State by  
      relying on the relevant provision.  
      
         			(6)
         		  Nevertheless, in  
       Verholen 
         			(7)
         		 the Court declared as follows:Community law does not preclude a national court from examining of its own motion whether national rules are in conformity
      with the precise and unconditional provisions of a directive, the period for whose implementation has elapsed, where the individual
      has not relied on that directive before the national court.It may be inferred from this that, where all the other conditions are satisfied in order for a provision of a directive to
      be directly applicable, a national court may apply the provision in question even where the beneficiary has not expressly
      relied upon it.  For the court to take a Community provision into account of its own motion is consonant with the primacy
      of Community law and fosters the effective application of Community law in the Member States.
      
      1. Case-law to date on the  
      horizontal direct effect of directives
      
      16.  In its case-law to date, the Court has refused to hold that directives may be applied directly to legal relations between
      private persons, that is to say that they may have so-called horizontal direct effect.  
      
         			(8)
         		  Its reasoning is that no obligations for individuals may be inferred from the direct applicability of directives, since
      it is only in relation to Member States that directives are binding, the Member States being, under the third paragraph of
      Article 189, the only addressees of directives.
      
      17.  The Court has confirmed this stance, contrary to the view taken by its Advocate General  
      
         			(9)
         		 and many learned commentators, yet again in its judgment in  
       Faccini Dori .  
      
         			(10)
         		  The contrary view taken by myself in my Opinion in that case related to directives adopted after the entry into force of
      the Single European Act and the Treaty on European Union.  The directive at issue in these proceedings was adopted  
       before  those treaties entered into force.  I am consequently unable to see any reason for proposing that the Court should go back
      on its case-law in that respect  
       in this case .
      
      2. Effects of Article 129a of the EC Treaty with regard to the  
      horizontal direct effect of directives
      
      18.  Unlike in the case of the legal position underlying  
       Faccini Dori , Article 129a has now been added to the Treaty.  The national court therefore expressly asks the Court to consider whether
      the entry of that provision into force may prompt a fundamental change in the case-law.
      
      19.  The parties' views on this are as follows.
      
      20.  The  
       plaintiff in the main proceedings  considers that Article 129a is not capable of calling in question the case-law to date.  The principle of a high level of
      consumer protection is not a new one in the EC Treaty, but was already enshrined in Article 100a(3).  It would make no sense
      for the mere introduction of an article on consumer protection in the Treaty to be able to change the whole of the Court's
      case-law on the direct applicability of directives.  The proposition asserted by the national court implies that there are
      privileged directives, which have horizontal directive effect  
       per se , and non-privileged directives.  The third paragraph of Article 189 affords no opening for such a distinction.
      
      21.  The  
       Government of the Kingdom of Spain  argues that Article 129a does not alter the legal position which existed before it was added to the Treaty.  Even before
      the Treaty on European Union entered into force, Article 100a(3) was concerned with a high level of consumer protection. 
      Article 129a simply makes it additionally possible to supplement the consumer protection policies pursued by the Member States
      by means of specific actions.  Moreover, even before Article 129a entered into force, there were manifold Community provisions
      in the field of consumer protection.Contrary to the national court's assumption, not all Treaty provisions have direct effect.  Lastly, there is nothing to prevent
      a provision of the Treaty from being directly applicable and a directive based on the provision in question not satisfying
      the requirements in order for it to be directly applicable.
      
      22.  The  
       Government of the French Republic  submits ─ in reliance on the Court's case-law to date ─ that Article 129a is not capable of having direct effect.  In order
      for individuals to be able to rely on that provision before the national courts, it would have to have direct effect.  In
      no case, however, can the directive have effects which place a burden on individuals.
      
      23.  Lastly, the  
       Commission  takes the view that the position of Article 129a in the Treaty shows that it creates a legal basis for consumer protection
      policy as a Community policy.  In order to achieve the aim of a high level of consumer protection, Article 129a refers both
      to measures to be adopted in the context of the completion of the internal market and to specific action on the part of the
      Council in support of Member States' policies in this area.  Article 129a constructs a Community policy in a predetermined
      framework which does not confer direct effect on the provision in question or enable an unimplemented directive to be relied
      upon as against individuals.  There is therefore no doubt that the  
       Faccini Dori   case-law should not be changed on account of Article 129a.
      
      24.  In order to answer the national court's question, it will first be necessary to ascertain the basic function and importance
      of Article 129a of the EC Treaty within the structure of the provisions of Community law, since, as far as can be seen, there
      is as yet no case-law on the interpretation of that provision.  Secondly, it will have to be considered whether, and if so
      what, conclusions have to be drawn with regard to any change in the case-law on the horizontal direct effect of directives.
      
      (a) Interpretation of Article 129a of the EC Treaty
      
      25.  Article 129a reads as follows: 
      1.  The Community shall contribute to the attainment of a high level of consumer protection through:
      (a) measures adopted pursuant to Article l00a in the context of the completion of the internal market;
      
      (b) specific action which supports and supplements the policy pursued by the Member States to protect the health, safety and economic
      interests of consumers and to provide adequate information to consumers.
      
      
      2.  The Council, acting in accordance with the procedure referred to in Article 189b and after consulting the Economic and Social
      Committee, shall adopt the specific action referred to in paragraph 1(b).
      
      3.  Action adopted pursuant to paragraph 2 shall not prevent any Member State from maintaining or introducing more stringent protective
      measures.  Such measures must be compatible with this Treaty.  The Commission shall be notified of them.
      
      
      26.  As a result of the Treaty on European Union, Article 3(s) of the EC Treaty confers on the Community the task of making  
      a contribution to the attainment of a high level of consumer protection.  The key change in the Treaty in the sphere of consumer protection was the addition of Article 129a in Part Three of the
      EC Treaty, which deals with Community policies.
      
      27.  It is conspicuous, in connection with Article 3(s) of the EC Treaty, that Article 129a(1) provides merely that the Community
      is to  
      contribute in the sphere of consumer protection, with the result that it was evidently intended also to leave leeway for competence
      on the part of the Member States.  Consequently, there is much to suggest that Article 129a of the EC Treaty sets out concurrent
      Community competence, which is therefore subject to the requirement of compliance with the principle of subsidiarity.  
      
         			(11)
         		  Accordingly, even if Article 129a contained something novel, it would be subject to Community action being necessary rather
      than action on the part of the Member States.
      
      28.  According to Article 129a(1) of the EC Treaty, the Community has to strive for a  
      high level of consumer protection.  Similar wording is also to be found in Article 100a(3) of the EC Treaty:The Commission, in its proposals (...) concerning (...) consumer protection, will take as a base a high level of protection.That provision was introduced into the Treaty by the Single European Act, which means that the expression  
      a high level of consumer protection is not an innovation brought about by the Treaty on European Union.
      
      29.  Nevertheless, the national court would see the use of this expression in Article 129a of the EC Treaty as an innovation with
      respect to Article 100a which is connected with the higher degree of political and legal integration introduced by the Maastricht
      Treaty.  In fact, however, it is clear already from the wording of Article 129a(1)(a) of the EC Treaty that reference was
      intended in the first place to be made only to the possibilities already available in the context of the completion of the
      internal market pursuant to Article 100a.  The only way in which Article 129a(1)(a) diverges from Article 100a is that the
      former provision commits the  
       Community  to achieving a  
      high level of consumer protection, whilst Article 100a puts the  
       Commission  under a corresponding duty.  
      
         			(12)
         		
      30.  At this point, it may be objected that precisely this extension of the obligation to the Community as a whole, that is to
      say, to all the Community institutions, including the Court, expresses the advance in terms of integration resulting from
      the Maastricht Treaty, which requires a higher degree of efficiency of Community law to be secured.  The requirement for efficiency
      (
       effet utile ) applies, however, still only in the context of the law in force and the existing division of powers.  The obligation on
      the  
       Community  with regard to consumer protection does not embody any obligation on the Member States or on individual Community citizens.
       However, Article 129a would have to embody such an obligation if it were to be the basis for the horizontal effect of a directive
      on consumer protection.
      
      31.  Consequently, the question remaining unanswered is what independent significance Article 129a may have as compared with Article
      100a of the EC Treaty.  It may be assumed that a large number of measures in the context of the internal market will contain
      references to consumer protection.  Consequently, in future measures based on Article 100a will invariably have to have regard
      also to Article 129a of the EC Treaty and to the aforementioned obligation on the part of the Community  
       as a whole .  Accordingly, as in the case of the comparable problems of the relationship between Article 100a and Article 130s, which
      have been resolved by the Court, Article 100a might have to be regarded as the more specific provision, compared with Article
      129a, as regards consumer protection in the context of the internal market.  
      
         			(13)
         		
      32.  However,  
       indent (b)  of Article 129a(1) contains an additional innovation inasmuch as it as sets out for the first time competence on the part
      of the Community to take specific action in the field of consumer protection policy  
       outside  the ambit of measures relating to the internal market.  
      
         			(14)
         		  Previously, such measures could be based only on Article 235 of the EC Treaty.  However, unlike Article 100a and Article
      129a(1)(a), Article 129a(1)(b) authorizes the Community only to support and supplement the policy pursued by the Member States
      and hence to act only on an ancillary basis.  
      
         			(15)
         		  This view is also supported by the  
      reinforcement of protection clause contained in Article 129a(3), which leaves certain powers to the Member States.  Furthermore, the position of Article
      129a within the scheme of the Treaty at the end of the part relating to Community policies and the words  
      specific action (rather than  
      measures) tend to suggest that Community activities in this area are not binding.
      
      33.  It must therefore be considered as an intermediate finding that Article 129a(1)(a) does not embody any qualitative change
      as compared with Article 100a such as to justify giving horizontal direct effect to consumer protection directives.  Only
      Article 129a(1)(b) and Article 129a(2) and (3) embody a qualitative enlargement of the former consumer protection under Community
      law.
      
      (b) Consequences with regard to any  
      horizontal direct effect of consumer protection directives 
      
      34.  It remains, however, to be considered whether the innovation which has been found to have been introduced by Article 129a(1)(b)
      of the EC Treaty is capable of having a bearing on the horizontal direct effect of directives.  As I have already stated,
       
      
         			(16)
         		 in this context the Community acts only in order to supplement the consumer protection policies of the Member States.  In
      my view, no original competence on the part of the Community to adopt measures binding on private persons, upon which the
      horizontal direct effect of directives would depend, can be inferred from Article 129a of the EC Treaty.
      
      35.  Indeed, it is even doubtful whether Article 129a has direct effect, which itself is a basic precondition in order to be able
      to rely on that provision in arguing that directives should have direct effect.  Article 129a of the EC Treaty does set the
      Community clear aims, but, in view of its nature as a competence-conferring provision, it leaves relatively large margins
      of discretion as regards its implementation.  Consequently, it lacks the very requirement that the provision in question should
      be sufficiently precise and unconditional.
      
      36.  Lastly, if it were to be held that directives have direct effect in view of Article 129a, this would entail consumer protection
      directives being treated differently than other directives.  However, such differentiation is not set out in the third paragraph
      of Article 189 of the EC Treaty and it does not appear that Article 129a contains a more specific provision than the third
      paragraph of Article 189.
      
      37.  It therefore remains to be stated that an amendment of the Court's case-law with regard to the so-called horizontal effect
      of directives is not necessitated by the introduction of Article 129a in the EC Treaty.
       
      
      C
         
       
      
      
      ─
      Conclusion 
      
      
      
      38.  In view of the foregoing considerations, I propose that the Court reply to the national court's question as follows:
      (1) Article 11 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 is not directly applicable in a case where a consumer seeks to
      rely, against a claim by the grantor of credit, on the defects in the service supplied by the supplier with whom the said
      grantor of credit has concluded an exclusive agreement for granting credit to his customers. 
      
      (2) Article 129a of the EC Treaty, which places the Communities under a duty to contribute to the attainment of a high level of
      consumer protection, is not capable of affording a basis for the direct applicability of directives on consumer protection.
      
      
      
      
       1 –
         
            Original language: German.
      
      2 –
         
         Council Directive 87/102/EEC of 22 December 1986 (OJ 1987 L 42, p. 48).
      
      3 –
         
         Case C-91/92  
             Faccini Dori  [1994] ECR I-3325.
         
      
      4 –
         
         Cited in footnote 2.
      
      5 –
         
         Cf. Articles 100 and 100a of the EC Treaty.
      
      6 –
         
         See Case 8/81  
             Becker  [1982] ECR 53.
         
      
      7 –
         
         Joined Cases C-87/90, C-88/90 and C-89/90  
             Verholen and Others  [1991] ECR I-3757, point 1 of the operative part.
         
      
      8 –
         
         Case 152/84  
             Marshall  [1986] ECR 723, paragraph 48; Joined Cases 372/85 to 374/85  
             Traen and Others  [1987] ECR 2141, paragraph 24; Case 14/86  
             Pretore di Salò  [1987] ECR 2545, paragraph 19; Case C-221/88  
             Busseni  [1990] ECR I-495, paragraph 23; Case C-106/89  
             Marleasing  [1990] ECR I-4135, paragraph 6; Case C-91/92  
             Faccini Dori , cited in footnote 2, paragraph 20.
         
      
      9 –
         
         My Opinion in Case C-91/92 in  
             Faccini Dori  [1994] ECR I-3325, at I-3328 and I-3345, point 73.
         
      
      10 –
         
         Cited in footnote 2, paragraph 24.
      
      11 –
         
         See Article 3b of the EC Treaty.
      
      12 –
         
         See Article 100a(3) of the EC Treaty.
      
      13 –
         
         Case C-300/89  
             Commission  v  
             Council  [1991] ECR I-2867, paragraph 25.
         
      
      14 –
         
         Engelhardt in Lenz (ed.),  
             EG-Vertrag, Kommentar , Article 129a, note 8.
         
      
      15 –
         
         See point 26 above.
      
      16 –
         
         In point 31.