CELEX: 62012CA0565
Language: en
Date: 2014-03-27 00:00:00
Title: 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)

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.