CELEX: 61994CJ0192
Language: en
Date: 1996-03-07
Title: Judgment of the Court (Sixth Chamber) of 7 March 1996. # 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.

Case C-192/94 El Corte Inglés SAvCristina Blázquez Rivero(Reference for a preliminary rulingfrom the Juzgado de Primera Instancia No 10 de Sevilla)
         
            «(Direct effect of unimplemented directives – Council Directive 87/102/EEC concerning consumer credit)»
            
               
                  Opinion of Advocate General Lenz delivered on 7 December 1995 
                     
                
               
            
                   
               
               
            
               
                  Judgment of the Court (Sixth Chamber), 7 March 1996  
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  1..
                  Acts of the institutions – Directives – Direct effect – Limits – Possibility of relying on a directive against an individual – Precluded  (EC Treaty, Art. 189, third para.) 
         
                  2..
                  Approximation of laws – Consumer protection in respect of consumer credit – Directive 87/102 – Possibility, in the absence of implementing measures, of relying on the directive in order to claim a right of action against
                     a lender who is a private person – Precluded – Community competence under Article 129a – No effect  
                  (EC Treaty, Arts 129a and 189, third para.; Council Directive 87/102, Art. 11) 
         
                  3..
                  Community law – Rights conferred on individuals – Infringement by a Member State of the obligation to transpose a directive – Obligation to make good damage caused to individuals – Conditions  (EC Treaty, Art. 189, third para.) 
         
         1.
          The ability to rely on directives against State entities is based on the binding nature of directives ─ which applies only
         with regard to the Member States to which they are addressed ─ and seeks to prevent a State from taking advantage of its failure
         to comply with Community law.  The effect of extending that principle to the sphere of relations between individuals would
         be to recognize a power in the Community to enact obligations for individuals with immediate effect, whereas it has competence
         to do so only where it is empowered to adopt regulations or decisions. It follows that a directive may not of itself impose obligations on an individual and may therefore not be relied upon as
         such against such a person. 
         
         2.
          In the absence of measures implementing Directive 87/102 for the approximation of the laws, regulations and administrative
         provisions of the Member States concerning consumer credit within the period prescribed by that directive, a consumer may
         not, even in view of Article 129a of the Treaty, base a right of action on the directive itself against a lender who is a
         private person, on account of inadequacies in the supply of goods or provision of services by the supplier or provider with
         whom the lender concluded an exclusive agreement with regard to the grant of credit, and assert that right before a national
         court. Article 129a is limited in scope.  On the one hand, it provides that the Community is under a duty to contribute to the attainment
         of a high level of consumer protection.  On the other, it creates Community competence with a view to specific action relating
         to consumer protection policy apart from measures taken in connection with the internal market.  In so far as it merely assigns
         an objective to the Community and confers powers on it to that end without also laying down any obligation on Member States
         or individuals, Article 129a cannot justify the possibility of clear, precise and unconditional provisions of directives on
         consumer protection which have not been transposed into Community law within the prescribed period being directly relied on
         as between individuals. 
         
         3.
          If the result prescribed by the directive cannot be achieved by way of interpretation,  Community law requires the Member
         States to make good damage caused to individuals through failure to transpose a directive, provided that three conditions
         are fulfilled.  First, the purpose of the directive must be to grant rights to individuals.  Second, it must be possible to
         identify the content of those rights on the basis of the provisions of the directive.  Finally, there must be a causal link
         between the breach of the State's obligation and the damage suffered. 
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)7 March 1996  (1)
         
         
            
         
               ((Direct effect of unimplemented directive – Council Directive 87/102/EEC concerning consumer credit))
               
            In Case C-192/94, 
            REFERENCE to the Court under Article 177 of the EC Treaty by the Juzgado de Primera Instancia No 10 de Sevilla (Spain) for
            a preliminary ruling in the proceedings pending before that court between 
            
            
            
             El Corte Inglés SA 
            
            
            and
            
             Cristina Blázquez Rivero 
            
            
            on the interpretation of Article 129a of the EC Treaty and 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
            (OJ 1987 L 42, p. 48),
            
            THE COURT (Sixth Chamber),,
            
            composed of: C.N. Kakouris, President of the Chamber, G. Hirsch (Rapporteur), P.J.G. Kapteyn, J.L. Murray and H. Ragnemalm, Judges, 
            
            Advocate General: C.O. Lenz, Registrar: R. Grass, 
            
            
            after considering the written observations submitted on behalf of:
               
               
               ─
               El Corte Inglés SA, by S. Martínez Lage and J. Pérez-Bustamente Köster, of the Madrid Bar, 
               
               
               ─
               the Spanish Government, by A.J. Navarro González, Director-General for Community Legal and Institutional Affairs, and R. Silva
               de Lapuerta, Abogado del Estado, acting as Agents, 
               
               
               ─
               the French Government, by I. Latournarie, Civil Administrator in the Legal Affairs Department of the Ministry of Foreign Affairs,
               and E. Belliard, Deputy Director for Legal Affairs in that ministry, acting as Agents, 
               
               
               ─
               the Commission of the European Communities, by A. Alcover, of its Legal Service, acting as Agent, 
               
               
            
            
            having regard to the report of the Judge-Rapporteur,
            
            after hearing the Opinion of the Advocate General at the sitting on 7 December 1995, 
         gives the following
         
         
         Judgment
         1
            
         By order of 30 June 1994, received at the Court on 4 July 1994, the Juzgado de Primera Instancia No 10 (Court of First Instance
         No 10), Seville, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation
         of Article 129a of the EC Treaty and 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 (OJ 1987 L 42, p. 48,
         hereinafter  
         the directive). 
         
         
         2
            
         The question was raised in proceedings brought by a finance company, El Corte Inglés (hereinafter  
         the finance company), against Mrs Blázquez Rivero after she suspended payments to the finance company. 
         
         
         3
            
         Mrs Blázquez Rivero entered into a contract for holiday travel with the travel agency Viajes El Corte Inglés SA (hereinafter
          
         the travel agency) which she financed in part by a loan obtained from the finance company.  The finance company had the exclusive right to
         grant loans to the travel agency's customers under an agreement between the two companies. 
         
         
         4
            
         Mrs Blázquez Rivero accused the travel agency of shortcomings in performing its obligations and made several complaints against
         it.  When those complaints proved unsuccessful, she ceased to pay instalments on the loan, whereupon the finance company brought
         proceedings in the Juzgado de Primera Instancia, Seville, for payment of the outstanding balance. 
         
         
         5
            
         Before the national court, Mrs Blázquez Rivero entered the defence against the finance company that the travel contract had
         not been performed, without drawing any distinction between the finance company and the travel agent in view of the close
         bond between them. 
         
         
         6
            
         The national court took the view that Article 11(2) of the directive enabled the consumer to bring an action against the finance
         company.  Article 11(2) provides as follows: 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.
         
         
         7
            
         In the national court's view, it is irrelevant that the action was brought, as in this case by the finance company and not
         by the consumer, since rights may be relied on in any event whether by way of action or by way of defence. 
         
         
         8
            
         It found, however, that Article 11(2) of the directive had not been transposed into Spanish law even though the period prescribed
         for implementation had run out at the material time and that the result intended by that provision could not be attained by
         interpreting national law in conformity with the directive.  Indeed, Article 1257 of the Spanish Civil Code, under which 
         
         contracts shall have effects only between the parties which concluded them and their heirs, prevents the consumer from pleading the shortcomings of the travel agency as against the finance company. 
         
         
         9
            
         Although it considered that Article 11(2) was sufficiently clear, precise and unconditional to be relied on before it, it
         suspended the proceedings and asked the Court to give a preliminary ruling on the following question: 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?
         
         
         10
            
         Shortly after this question was referred, the Court gave judgment in Case C-91/92  
          Faccini Dori  [1994] ECR I-3325, in which it reaffirmed its case-law according to which directives do not have any horizontal direct effect.
          The Court forwarded a copy of that judgment to the national court and asked it whether, in the light of that judgment, it
         wished to maintain its question. 
         
         
         11
            
         The national court considered that the judgment in  
          Faccini Dori  provided a clear answer to the question of the horizontal direct effect of unimplemented directives, but observed that, unlike
         in the case of the dispute before it,  
          Faccini Dori  was concerned with facts antedating the entry into force of the Treaty on European Union.  That Treaty introduced a new consumer
         protection provision, Article 129a. 
         
         
         12
            
         Article 129a provides as follows: 
         
         1.
          The Community shall contribute to the attainment of a high level of consumer protection through:
         
         
         (a)
         measures adopted pursuant to Article 100a 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.
         
         
         
         13
            
         The national court maintained its question on the ground that it wondered whether that rule establishing the principle of
         a high degree of consumer protection might have any bearing on the direct effect as between individuals of Article 11 of the
         directive. 
         
         
         14
            
         By its question, the national court essentially seeks to establish whether, in the absence of measures implementing the directive
         within the prescribed period, a consumer may, in view of Article 129a of the Treaty, base a right of action on the directive
         itself against a lender who is a private person, on account of inadequacies in the supply of goods or provision of services
         by the supplier or provider with whom the lender concluded an exclusive agreement with regard to the grant of credit and assert
         that right before a national court. 
         
            
               Whether the provisions of the directive relating to the consumer's right of action may be relied on in proceedings between
                  the consumer and a lender
               
            
         
         15
            
         As the Court has consistently held (see, in particular, Case 152/84  
          Marshall I  [1986] ECR 723, paragraph 48), a directive may not of itself impose obligations on an individual and may therefore not be
         relied upon as such against such a person. 
         
         
         16
            
         As for the case-law on when directives may be relied upon against State entities, it is based on the binding nature of directives,
         which applies only with regard to the Member States to which they are addressed, and seeks to prevent a State from taking
         advantage of its own failure to comply with Community law (see  
          Marshall I , paragraphs 48 and 49). 
         
         
         17
            
         The effect of extending that case-law to the sphere of relations between individuals would be to recognize a power in the
         Community to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is
         empowered to adopt regulations or decisions (see  
          Faccini Dori , paragraph 24). 
         
         
         18
            
         Article 129a of the Treaty cannot alter that case-law, even if only in relation to directives on consumer protection. 
         
         
         19
            
         Suffice it to say in this connection that the scope of Article 129a is limited.  On the one hand, it provides that the Community
         is under a duty to contribute to the attainment of a high level of consumer protection.  On the other, it creates Community
         competence with a view to specific action relating to consumer protection policy apart from measures taken in connection with
         the internal market. 
         
         
         20
            
         In so far as it merely assigns an objective to the Community and confers powers on it to that end without also laying down
         any obligation on Member States or individuals, Article 129a cannot justify the possibility of clear, precise and unconditional
         provisions of directives on consumer protection which have not been transposed into Community law within the prescribed period
         being directly relied on as between individuals. 
         
         
         21
            
         Consequently, a consumer cannot base on the directive itself a right of action against a lender who is a private person following
         shortcomings in the supply of goods or the provision of services and assert that right before a national court. 
         
         
         22
            
         Moreover, if the result prescribed by the directive cannot be achieved by way of interpretation, it should also be borne in
         mind that, in terms of the judgment in Joined Cases C-6/90 and C-9/90  
          Francovich and Others  v  
          Italy  [1991] ECR I-5357, paragraph 39, Community law requires the Member States to make good damage caused to individuals through
         failure to transpose a directive, provided that three conditions are fulfilled.  First, the purpose of the directive must
         be to grant rights to individuals.  Second, it must be possible to identify the content of those rights on the basis of the
         provisions of the directive.  Finally, there must be a causal link between the breach of the State's obligation and the damage
         suffered (
          Faccini Dori , paragraph 27). 
         
         
         23
            
         In the light of the foregoing, it should be stated in reply to the national court's question that, in the absence of measures
         implementing the directive within the prescribed period, a consumer may not, even in view of Article 129a of the Treaty, base
         a right of action on the directive itself against a lender who is a private person, on account of inadequacies in the supply
         of goods or provision of services by the supplier or provider with whom the lender concluded an exclusive agreement with regard
         to the grant of credit and assert that right before a national court. 
         
         Costs
         24
            
         The costs incurred by the Spanish and French Governments and the Commission of the European Communities, which have submitted
         observations to the Court, are not recoverable.  Since these proceedings are, for the parties to the main action, 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 (Sixth Chamber),
         
         
         in answer to the question referred to it by the Juzgado de Primera Instancia No 10, Seville, by order of 30 June 1994, hereby
         rules: 
         
                  Kakouris
               
               
                  Hirsch 
               
               
                  Kapteyn 
               
            
                  Murray
               
               
                  Ragnemalm 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 7 March 1996. 
         
         
         
         
                  R. Grass 
               
               
                  C.N. Kakouris  
               
            
         
         
         
                  Registrar
               
               
                  President of the Sixth Chamber
               
            
      
      
          1 –
            
             Language of the case: Spanish.