LCL Le Crédit Lyonnais SA v Fesih Kalhan.
Date: 2014-03-27
37. As regards, secondly, the Commission’s doubts as to the usefulness of an answer to the question referred for the resolution of the dispute in the main proceedings, it must be pointed out that, according to settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU 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‑279/12 Fish Legal and Shirley  [2013] ECR, paragraph 30).
42. Since the creditor’s obligation, prior to conclusion of the agreement, to assess the borrower’s creditworthiness is intended to protect consumers against the risks of over-indebtedness and bankruptcy, it contributes to attaining the objective of Directive 2008/48, which consists, as can be seen from recitals 7 and 9 in the preamble to that directive, in providing, as regards consumer credit, full and mandatory harmonisation in a number of key areas, which is regarded as necessary in order to ensure that all consumers in the European Union enjoy a high and equivalent level of protection of their interests and to facilitate the emergence of a well-functioning internal market in consumer credit.
43. In the light of such an objective, which seeks to ensure the effective protection of consumers against the irresponsible granting of credit agreements which are beyond their financial capacities and which may bankrupt them, Article 23 of Directive 2008/48 provides that the system of penalties applicable in the event of infringement of the national provisions concerning the assessment of the borrower’s creditworthiness prior to conclusion of the agreement, adopted pursuant to Article 8 of that directive, is to be established in such a way as to ensure that the penalties are effective, proportionate and dissuasive and, furthermore, that the Member States are to take all measures necessary to ensure that they are implemented. In addition, it can be seen from recital 47 in the preamble to that directive that, within those limits, the choice of penalties remains within the discretion of the Member States.
44. In this respect, it must be pointed out that the Court has consistently held, with regard to the principle of sincere cooperation, now enshrined in Article 4(3) TEU, that, while the choice of penalties remains within their discretion, Member States must ensure in particular that infringements of EU law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive (see, to that effect, inter alia, Joined Cases C‑387/02, C‑391/02 and C‑403/02 Berlusconi and Others  [2005] ECR I‑3565, paragraphs 64 and 65, and Case C‑418/11 Texdata Software  [2013] ECR, paragraph 50).
45. In particular, the Court has held that the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely dissuasive effect, while respecting the general principle of proportionality ( Texdata Software , paragraph 51).
52. Moreover, given the importance, noted in paragraph 43 of the present judgment, of the objective of consumer protection inherent in the creditor’s obligation to assess the borrower’s creditworthiness, the penalty of forfeiture of entitlement to contractual interest cannot be regarded, more generally, as being genuinely deterrent if the referring court were to find, at the conclusion of the comparison referred to in paragraph 50 of the present judgment and in the light of all the relevant circumstances there referred to, that — in a case such as that which has been brought before it, 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 likely to receive following the application of that penalty are not significantly less than those which that creditor could have received had it complied with that obligation.
53. If the penalty of forfeiture of entitlement to interest is weakened, or even entirely undermined, by reason of the fact that the application of interest at the increased statutory rate is liable to offset the effects of such a penalty, it necessarily follows that that penalty is not genuinely dissuasive (see, by analogy, Case C‑382/92 Commission  v United Kingdom  [1994] ECR I‑2435, paragraphs 56 to 58).
54. In the event that the referring court were to find that the penalty of forfeiture of entitlement to contractual interest is not genuinely dissuasive, within the meaning of Article 23 of Directive 2008/48, it must be noted in this respect that a national court, when hearing a case exclusively between individuals, is required, when applying the provisions of domestic law, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the applicable directive in order to achieve an outcome consistent with the objective pursued by that directive (see, inter alia, Case C‑351/12 OSA [2014] ECR, paragraph 44).