Home Credit Slovakia a.s. v Klára Bíróová.
Date: 2016-11-09
32


That requirement contributes to attaining the objective pursued by Directive 2008/48, which consists 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 (see, to that effect, judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 61).
35


Referring, inter alia, to the definition of ‘durable medium’ in Article 3(m) of Directive 2008/48, the Court has held that that medium must enable the consumer, in a similar way to paper form, to be in possession of the relevant information to enable him to exercise his rights, where necessary. What is relevant for the consumer is that he should be able to store the information which has been addressed to him personally, to rest assured that its content will not be altered, that the information will be accessible for an adequate period and that it will be possible to reproduce it unchanged (see, to that effect, as regards Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19), judgment of 5 July 2012, Content Services, C‑49/11, EU:C:2012:419, paragraphs 42 to 44).
41


Neither Directive 2008/48, which aims to provide, as regards consumer credit, for full and mandatory harmonisation in a number of key areas, which is considered to be 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 (see, to that effect, judgments of 27 March 2014, LCL Le Crédit Lyonnais, C‑565/12, EU:C:2014:190, paragraph 42; 18 December 2014, CA Consumer Finance, C‑449/13, EU:C:2014:2464, paragraph 21, and 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 61), nor EU law in general preclude such a requirement.
55


As regards the Member States’ discretion to impose such an obligation in their national legislation, it must be noted that, so far as concerns credit agreements which fall within the scope of Directive 2008/48, Member States may not adopt obligations for the parties to the agreement which are not provided for in that directive where the directive contains provisions harmonised in the area covered by those obligations (see, by analogy, judgment of 12 July 2012, SC Volksbank România, C‑602/10, EU:C:2012:443, paragraphs 63 and 64).
62


However, it is apparent from recital 47 of the directive that, while the choice of penalties remains within the discretion of the Member States, such penalties must be effective, proportionate and dissuasive (see, to that effect, judgment of 27 March 2014, LCL Le Crédit Lyonnais, C‑565/12, EU:C:2014:190, paragraph 43).
63


The Court has previously 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 deterrent effect, while respecting the general principle of proportionality (see judgment of 27 March 2014, LCL Le Crédit Lyonnais, C‑565/12, EU:C:2014:190, paragraph 45 and the case-law cited).
65


Given the importance of the objective of consumer protection inherent in the lender’s obligation to assess the borrower’s creditworthiness, the Court has held that if the penalty of forfeiture of entitlement to interest were weakened, or even entirely undermined, it would necessarily follow that the penalty is not genuinely dissuasive (see, to that effect, judgment of 27 March 2014, LCL Le Crédit Lyonnais, C‑565/12, EU:C:2014:190, paragraphs 52 and 53).
66


As regards the failure, in a credit agreement, to include certain information relating to the terms of repayment and charges linked to that credit, the Court has also held that, in the light of the objective pursued by 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), as amended by Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 (OJ 1998 L 101, p. 17) (‘Directive 87/102’), of protecting the consumer against unfair credit terms and of enabling him to have full knowledge of the terms of the future performance of the agreement entered into at the time of concluding such an agreement, Article 4 of that directive, required that the borrower must have to hand all information which could have a bearing on the extent of his liability (see judgment of 9 July 2015, Bucura, C‑348/14, not published, EU:C:2015:447, paragraph 57).
69


In the light of the case-law referred to in paragraphs 63 to 68 above, it must be found that a creditor’s breach of a vitally important obligation in the context of Directive 2008/48 may be penalised, under national law, by the creditor’s forfeiture of entitlement to interest and charges.