Michel Schyns v Belfius Banque SA.
Date: 2019-06-06
28


It should be noted in this regard that the objective pursued by Directive 2008/48 consists, as can be seen from recitals 7 and 9 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 (judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 61 and the case-law cited).
29


Although it follows from Article 22(1) of Directive 2008/48 that the directive provides for full harmonisation in so far as the Member States are not authorised to maintain or introduce national provisions diverging from those laid down in the directive (judgment of 12 July 2012, SC Volksbank România, C‑602/10, EU:C:2012:443, paragraph 38), the last sentence of Article 5(6) of the directive allows the Member States some flexibility in that they may ‘adapt the manner by which and the extent to which’ assistance to be provided to consumers by creditors and, where applicable, credit intermediaries is given.
30


In addition, it is apparent from Article 5(6) and recital 27 of Directive 2008/48 that, notwithstanding the pre-contractual information which must be provided under Article 5(1) of that directive, the consumer may, before entering into the credit agreement, still need additional assistance in order to decide which credit agreement is the most appropriate for his needs and his financial situation and that Member States must ensure that creditors provide such assistance in relation to the credit products which they offer to the consumer (judgment of 18 December 2014, CA Consumer Finance, C‑449/13, EU:C:2014:2464, paragraph 41). Furthermore, recital 24 of Directive 2008/48 states that the consumer needs to be given ‘comprehensive’ information before he concludes the credit agreement.
34


First, information, before and at the time of concluding a contract, on the terms of the contract and the consequences of concluding it is of fundamental importance for a consumer. It is, in particular, on the basis of that information that the consumer decides whether he wishes to be bound by the conditions drafted in advance by the seller or supplier (judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 64). Second, the identification of the most suitable credit is intended to improve consumer information in order to enable the consumer to take a well-informed final decision. Lastly, the obligation to provide such information is not such as to call into question the principle that the consumer is responsible for the final decision to conclude the credit agreement that he wishes from among those offered to him by the creditor at a pre-contractual stage.
38


It should be pointed out that, although the referring court mentions only Article 5(6) of Directive 2008/48, these questions relate, in essence, to the assessment of the consumer’s creditworthiness by the creditor under Article 8(1) of that directive. As the Advocate General noted in point 66 of her Opinion, that provision should therefore be included amongst the European Union legal instruments which the referring court seeks to have interpreted by the Court (see, to that effect, judgment of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 45).
40


The Court has ruled in this regard that this obligation to assess the consumer’s creditworthiness aims to make creditors accountable and to prevent them from granting loans to consumers who are not creditworthy (judgment of 18 December 2014, CA Consumer Finance, C‑449/13, EU:C:2014:2464, paragraph 43).