SC Volksbank România SA v Autoritatea Naţională pentru Protecţia Consumatorilor — Comisariatul Judeţean pentru Protecţia Consumatorilor Călăraşi (CJPC).
Date: 2012-07-12
38. It follows from Article 22(1) of Directive 2008/48, interpreted in the light of recitals 9 and 10 in its preamble, that, so far as concerns credit agreements which fall within the directive’s scope, the directive provides for full harmonisation and — as is evident from the heading of Article 22 — is imperative in nature, factors which must be understood as meaning that, as regards the matters specifically covered by that harmonisation, the Member States are not authorised to maintain or introduce national provisions other than those provided for by the directive.
46. The Romanian Government considers that this question is cast in terms that are too general, since it refers to consumer credit agreements generally whilst the main proceedings concern a credit agreement secured by a mortgage, which does not fall within the material scope of Directive 2008/48. The question is therefore partially inadmissible.
48. As to those submissions, it should be borne in mind that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see, inter alia, Joined Cases C-317/08 to C-320/08 Alassini and Others  [2010] ECR I-2213, paragraph 25 and the case-law cited).
49. Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, Case C-450/06 Varec  [2008] ECR I-581, paragraph 24 and the case-law cited).
63. It should be added that, as has been stated in paragraph 38 of the present judgment, Article 22(1) of Directive 2008/48, interpreted in the light of recitals 9 and 10 in the directive’s preamble, must be understood as meaning that, so far as concerns credit agreements which fall within the directive’s scope — to which the national court refers within the framework of the present question even if they are not the subject of the dispute in the main proceedings — the directive provides for a full and imperative harmonisation which, as regards the matters specifically covered by that harmonisation, precludes the Member States from maintaining or introducing national provisions other than those which it contains.
64. Therefore, in the case of such agreements, the Member States are entitled to adopt obligations such as the obligation arising from Article 36 of OUG 50/2010 regarding bank charges only if Directive 2008/48 does not contain harmonised provisions on that matter.
65. It must be found that, whilst Directive 2008/48 provides for obligations relating to the information required to be supplied by the creditor as regards, inter alia, bank charges in so far as they form part of the total cost of the credit within the meaning of Article 3(g) thereof, the directive does not, on the other hand, contain substantive rules relating to the types of charges that the creditor may levy.
70. Where a national measure relates to both the freedom to provide services and the free movement of capital, it is necessary to consider to what extent the exercise of those fundamental freedoms is affected and whether, in the circumstances of the main proceedings, one of them prevails over the other. The Court will in principle examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it (Case C-452/04 Fidium Finanz  [2006] ECR I-9521, paragraph 34).
71. In the present instance, if it were to be found, as Volksbank contends, that, by making consumer credit offered by companies which are established in other Member States less accessible for customers established in Romania, that provision has the effect of making recourse by such customers to those services less frequent and, therefore, of reducing cross-border financial flows relating to those services, that would be merely an unavoidable consequence of any restriction on the freedom to provide services (see, to this effect, Fidium Finanz , paragraph 48).
72. As regards examination of the national provision at issue in the main proceedings in the light of the Treaty rules concerning the freedom to provide services, it is clear from the Court’s settled case-law that the business of a credit institution consisting of granting credit constitutes a service within the meaning of Article 56 TFEU (see, in particular, Fidium Finanz , paragraph 39).
73. It is also settled case-law that the concept of ‘restriction’ within the meaning of Article 56 TFEU relates to measures by which exercise of the freedom to provide services is prohibited, impeded or rendered less attractive (see, inter alia, Case C-565/08 Commission  v Italy  [2011] ECR I-2101, paragraph 45).
74. As to determining the circumstances in which a measure that is applicable without distinction to all credit institutions supplying services in Romania, such as the prohibition on levying certain bank charges at issue here, may fall within that concept, it must be borne in mind that rules of a Member State do not constitute a restriction within the meaning of the Treaty solely by virtue of the fact that other Member States apply less strict, or economically more favourable, rules to providers of similar services established in their territory (see, inter alia Commission  v Italy , paragraph 49).
75. On the other hand, the concept of ‘restriction’ covers measures taken by a Member State which, although applicable without distinction, affect access to the market for economic operators from other Member States (see, inter alia, Commission  v Italy , paragraph 46).
81. In those circumstances, the effect of that national provision on trade in services is too uncertain and indirect for such a national measure to be regarded as liable to hinder intra-Community trade (see by analogy, inter alia, Case C-291/09 Francesco Guarnieri & Cie  [2011] ECR I-2685, paragraph 17 and the case-law cited).
86. The Court has repeatedly considered itself to have jurisdiction to give preliminary rulings on questions concerning provisions of European Union law in situations where the facts at issue in the main proceedings were outside the scope of European Union law and therefore fell within the competence of the Member States alone, but where those provisions of European Union law had been rendered applicable by domestic law due to a reference made by that law to the content of those provisions (see, inter alia, Case C-310/10 Agafiţei and Others  [2011] ECR I-5989, paragraph 38 and the case-law cited).
87. The Court has stated in particular in that regard that where, in regulating purely internal situations, domestic legislation seeks to adopt the same solutions as those adopted in European Union law in order, for example, to avoid discrimination against a Member State’s own nationals or any distortion of competition or to provide for one single procedure in comparable situations, there is clearly an interest that, in order to forestall future differences of interpretation, provisions or concepts taken from European Union law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, inter alia, Agafiţei and Others , paragraph 39 and the case-law cited).