1 These requests for a preliminary ruling concern the interpretation of Articles 10(2) and 14(1) 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).
2 These requests have been made in proceedings between UK and Volkswagen Bank GmbH (Case C‑33/20), between RT, SV and BC, on the one hand, and Volkswagen Bank and Skoda Bank, a branch of Volkswagen Bank (‘Skoda Bank’), on the other, (Case C‑155/20) and between JL and DT, on the one hand, and BMW Bank GmbH and Volkswagen Bank, on the other, (Case C‑187/20) concerning the validity of the withdrawal by UK, RT, SV, BC, JL and DT from credit agreements concluded with those banks.
3 Recitals 30 and 31 of Directive 2008/48 state: ‘(30) This Directive does not regulate contract law issues related to the validity of credit agreements. Therefore, in that area, the Member States may maintain or introduce national provisions which are in conformity with Community law. … (31) In order to enable the consumer to know his rights and obligations under the credit agreement, it should contain all necessary information in a clear and concise manner.’
4 Article 3 of that directive, entitled ‘Definitions’, provides: ‘For the purposes of this Directive, the following definitions shall apply: … (i) “annual percentage rate of charge” means the total cost of the credit to the consumer, expressed as an annual percentage of the total amount of credit, where applicable including the costs referred to in Article 19(2); (j) “borrowing rate” means the interest rate expressed as a fixed or variable percentage applied on an annual basis to the amount of credit drawn down; (k) “fixed borrowing rate” means that the creditor and the consumer agree in the credit agreement on one borrowing rate for the entire duration of the credit agreement or on several borrowing rates for partial periods using exclusively a fixed specific percentage. If not all borrowing rates are determined in the credit agreement, the borrowing rate shall be deemed to be fixed only for the partial periods for which the borrowing rates are determined exclusively by a fixed specific percentage agreed on the conclusion of the credit agreement; … (n) “linked credit agreement” means a credit agreement where (i) the credit in question serves exclusively to finance an agreement for the supply of specific goods or the provision of a specific service, and (ii) those two agreements form, from an objective point of view, a commercial unit; a commercial unit shall be deemed to exist where the supplier or service provider himself finances the credit for the consumer or, if it is financed by a third party, where the creditor uses the services of the supplier or service provider in connection with the conclusion or preparation of the credit agreement, or where the specific goods or the provision of a specific service are explicitly specified in the credit agreement.’
5 Article 10 of that directive, entitled ‘Information to be included in credit agreements’, provides: ‘1. Credit agreements shall be drawn up on paper or on another durable medium. All the contracting parties shall receive a copy of the credit agreement. This Article shall be without prejudice to any national rules regarding the validity of the conclusion of credit agreements which are in conformity with Community law. 2. The credit agreement shall specify in a clear and concise manner: (a) the type of credit; … (c) the duration of the credit agreement; (d) the total amount of the credit and the conditions governing the drawdown; (e) in case of a credit in the form of deferred payment for a specific good or service or in the case of linked credit agreements, that good or service and its cash price; … (l) the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement and the arrangements for its adjustment and, where applicable, any charges payable for default; … (r) the right of early repayment, the procedure for early repayment, as well as, where applicable, information concerning the creditor’s right to compensation and the way in which that compensation will be determined; (s) the procedure to be followed in exercising the right of termination of the credit agreement; (t) whether or not there is an out-of-court complaint and redress mechanism for the consumer and, if so, the methods for having access to it; (u) where applicable, other contractual terms and conditions; …’
6 Article 13 of that directive, entitled ‘Open-end credit agreements’, lays down the circumstances in which consumers and creditors may terminate an open-end credit agreement.
7 Article 14 of Directive 2008/48, entitled ‘Right of withdrawal’, provides: ‘1. The consumer shall have a period of 14 calendar days in which to withdraw from the credit agreement without giving any reason. That period of withdrawal shall begin (a) either from the day of the conclusion of the credit agreement, or (b) from the day on which the consumer receives the contractual terms and conditions and information in accordance with Article 10, if that day is later than the date referred to in point (a) of this subparagraph.’
8 Article 22 of that directive, entitled ‘Harmonisation and imperative nature of this Directive’, states in paragraph 1: ‘In so far as this Directive contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in this Directive.’
9 Article 23 of that directive, entitled ‘Penalties’, reads as follows: ‘Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.’
10 The Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the Civil Code) of 21 September 1994 (BGBl. 1994 I, p. 2494, and corrigendum BGBl. 1997 I, p. 1061), in the version applicable to the facts in the main proceedings (‘the EGBGB’), contains Paragraph 247, entitled ‘Information requirements in respect of consumer loan agreements, remunerated financial assistance and credit intermediation agreements’, which provides: ‘… § 3 Content of pre-contractual information (1) The information provided prior to conclusion of the agreement shall include: … 11. the rate of late-payment interest and the arrangements for its adjustment and, where applicable, any charges payable for default; … § 6 Content of the agreement (1) The following information shall be included in the consumer credit agreement in plain intelligible language: 1. the information set out in subparagraph 3(1), points 1 to 14, and subparagraph 3(4); … 5. the procedure for terminating the agreement; … § 7 Other information in the agreement (1) The following information shall be included in the consumer credit agreement in plain intelligible language, in so far as it is relevant to the agreement: … 3. the method for calculating compensation for early repayment, to the extent that the creditor intends to assert his or her right to such compensation in the event of early repayment of the loan by the borrower; …’
11 The Bürgerliches Gesetzbuch (Civil Code), in the version applicable to the facts in the main proceedings (‘the BGB’), contains Paragraph 247, entitled ‘Base rate’, which provides: ‘(1) The base rate shall be 3.62%. On 1 January and 1 July of each year, it shall be adjusted by the percentage points by which the reference value has increased or decreased since the last adjustment. The reference value shall correspond to the interest rate set by the European Central Bank for the most recent main refinancing operation carried out prior to the first calendar day of the relevant six-month period. (2) The Deutsche Bundesbank [(German Central Bank)] shall publish the base rate in the Bundesanzeiger immediately after the dates specified in the second sentence of the first subparagraph.’
12 Paragraph 288 of the BGB, entitled ‘Late-payment interest and other compensation’, provides in subparagraph 1: ‘Any debt of money shall accrue interest during the period of delay. The rate of late-payment interest shall be five percentage points per annum above the base rate.’
13 Paragraph 314 of the BGB, entitled ‘Termination of agreements for successive performance with good cause’, provides in subparagraph 1: ‘Any agreement for successive performance may be terminated with good cause by either party without giving notice. Good cause exists where the continuation of the contractual relationship until the agreed date or until the expiry of a notice period cannot be imposed on the terminating party, having regard to all the facts of the case and to the respective interests of both parties.’
14 Paragraph 355 of the BGB, entitled ‘Right of withdrawal from consumer agreements’, reads as follows: ‘(1) Where the law confers on the consumer a right of withdrawal in accordance with this provision, the consumer and the trader shall cease to be bound by their declarations of intent to conclude the agreement if the consumer has withdrawn his or her declaration to that effect within the prescribed period. (2) The withdrawal period shall be 14 days. Unless otherwise provided, that period shall begin at the time of conclusion of the agreement.’
15 Paragraph 356b of the BGB, entitled ‘Right of withdrawal from consumer credit agreements’, provides in subparagraph 2: ‘If the document delivered to the borrower under subparagraph 1 does not contain the mandatory information provided for in Paragraph 492(2), the period shall not begin until that deficiency has been remedied in accordance with Paragraph 492(6) …’
16 Paragraph 357 of the BGB, entitled ‘Legal consequences of withdrawing from agreements concluded away from business premises and at a distance, with the exception of agreements for financial services’, provides in subparagraph 1: ‘Benefits received must be returned within 14 days.’
17 Paragraph 357a of the BGB is entitled ‘Legal consequences of withdrawing from agreements for financial services’. Subparagraph 1 thereof is worded as follows: ‘Benefits received must be returned within 30 days.’
18 Paragraph 358 of the BGB, entitled ‘Agreements linked to an agreement subject to withdrawal’, reads as follows: ‘… (2) Where the consumer has validly withdrawn his or her declaration of intent to conclude a consumer credit agreement on the basis of Paragraph 495(1), he or she shall also cease to be bound by his or her declaration of intent to conclude an agreement, linked to that consumer credit agreement, for the supply of goods or the provision of other services. (3) An agreement for the supply of goods or the provision of other services and a credit agreement under subparagraphs 1 and 2 shall be linked if the credit serves to finance the other agreement in whole or in part and if they both form one economic unit. Such a unit shall exist, in particular, where the trader himself or herself finances the consumer’s counter-performance or, if it is financed by a third party, where the creditor involves the trader in the preparation or conclusion of the credit agreement. (4) Paragraph 355(3) and, depending on the type of linked agreement, Paragraphs 357 to 357b shall apply mutatis mutandis to the termination of the linked agreement, irrespective of the marketing method used … … In his or her dealings with the consumer, the creditor shall assume the rights and obligations of the trader arising from the linked agreement as regards the legal consequences of withdrawal if, at the time withdrawal takes effect, the loan amount has already been paid to the trader.’
19 Paragraph 491a of the BGB, entitled ‘Pre-contractual information obligations in consumer credit agreements’, provides in subparagraph 1: ‘In the case of a consumer credit agreement, the creditor shall provide the borrower with the information resulting from Paragraph 247 [of the EGBGB] in the manner provided for therein.’
20 Under Paragraph 492 of the BGB, entitled ‘Written form and content of the agreement’: ‘(1) Consumer credit agreements shall be concluded in writing unless a more stringent formal requirement applies. … (2) The agreement shall contain the information prescribed in Paragraph 247(6) to (13) [of the EGBGB] in respect of consumer credit agreements. … (5) The information to be provided by the creditor to the borrower after conclusion of the agreement shall be provided on a durable medium.’
21 Paragraph 495 of the BGB, entitled ‘Right of withdrawal’, provides in subparagraph 1: ‘In the case of a consumer credit agreement, the borrower shall have a right of withdrawal in accordance with Paragraph 355 of the BGB.’
22 On 19 December 2015, UK, a consumer, and Volkswagen Bank concluded a credit agreement in the amount of EUR 10 671.63 for the purchase of a Volkswagen motor vehicle for private use (‘the agreement at issue in Case C‑33/20’). The seller of that vehicle was Hahn Automobile GmbH & Co. KG (‘Seller A’). The sale price being EUR 15200, UK made a down payment of EUR 5000 to Seller A and took out finance of EUR 10200 plus EUR 471.63 to cover a one-off contribution in respect of insurance for the outstanding debt, thus totalling EUR 10 671.63.
23 The agreement at issue in Case C‑33/20 contained the following statement: ‘If the agreement is terminated, we will charge you late-payment interest at the statutory rate. The annual rate of late-payment interest shall be five percentage points above the relevant base rate.’
24 Furthermore, a document entitled ‘Standard European Consumer Credit Information’ was provided to UK. That document stated: ‘The annual rate of late-payment interest shall be five percentage points above the relevant base rate. The base rate is determined by the German Central Bank and is set on 1 January and 1 July of each year.’
25 The referring court explains that the agreement at issue in Case C‑33/20 did not state in figures the applicable rate of late-payment interest or, at the very least, the applicable reference interest rate, namely the base rate provided for in Paragraph 247 of the BGB. In addition, that court notes that the agreement also omitted to mention the arrangements for adjusting the rate of late-payment interest, since the document provided to UK, to which the preceding paragraph refers, did not form part of the agreement at issue in Case C‑33/20 because of non-compliance with the requirement of writing, laid down in Paragraph 492(1) of the BGB.
26 The agreement at issue in Case C‑33/20 provided as follows: ‘The bank may demand an appropriate amount of early repayment compensation for loss directly related to early repayment. The bank shall calculate the loss in accordance with the financial arithmetic framework established by the Bundesgerichtshof [(Federal Court of Justice, Germany)], which takes into account, inter alia: - interest-rate fluctuations in the intervening period; - cash flows originally agreed under the loan; - loss of profit sustained by the bank; - administrative costs associated with early repayment (management costs); and - risk costs and administrative costs not incurred as a result of early repayment.’
27 As regards the conditions governing termination of the agreement at issue in Case C‑33/20 with good cause by the creditor, that agreement did not stipulate how such termination was to be carried out or how long the creditor had in order to terminate the agreement. As is apparent from the order for reference, the agreement did not contain any reference to the borrower’s right to terminate it under Paragraph 314 of the BGB.
28 Volkswagen Bank used the services of Seller A in connection with the preparation and conclusion of the agreement at issue in Case C‑33/20. That seller, in particular, acted as a credit broker for Volkswagen Bank and used the standard agreements provided by that bank. That agreement stipulated that, with effect from 15 February 2016, UK was required to repay the credit of EUR 11 545.26 (corresponding to the net principal of EUR 10 671.63, plus interest of EUR 873.63) in 48 monthly instalments of EUR 150.08 each and a final payment of EUR 4 341.42 to be made on 16 January 2020.
29 UK duly paid the scheduled monthly instalments. However, by letter of 22 January 2019, he withdrew from the agreement. Volkswagen Bank rejected that withdrawal.
30 UK submits that, as a result of his withdrawal on 22 January 2019, the agreement at issue in Case C‑33/20 was converted into a repayment obligation. By his action before the referring court, UK seeks a declaration that he is released from his obligation to pay the monthly instalments to Volkswagen Bank with effect from 22 January 2019. He also seeks repayment from Volkswagen Bank of the monthly instalments already paid and the down payment made to Seller A, all as consideration for returning the purchased vehicle.
31 Volkswagen Bank contends that UK’s withdrawal declaration is out of time and that, accordingly, the withdrawal is invalid.
32 In those circumstances, the Landgericht Ravensburg (Regional Court, Ravensburg, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 10(2)(l) of Directive [2008/48] to be interpreted as meaning that the credit agreement (a) must specify the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement as an absolute number or, at the very least, the current reference interest rate (in this case the base rate in accordance with Paragraph 247 of the BGB), from which the interest rate applicable in the case of late payments is obtained by adding a premium (in this case of five percentage points in accordance with Paragraph 288(1), second sentence, of the BGB), as an absolute number; and (b) must explain the specific arrangements for adjustment of the interest rate applicable in the case of late payments or, at the very least, must reference the national standards from which such arrangements follow (Paragraph 247 and Paragraph 288(1), second sentence, of the BGB)? (2) Is Article 10(2)(r) of Directive [2008/48] to be interpreted as meaning that the credit agreement must specify a particular arithmetical formula that the consumer can understand for calculating the compensation payable in the event of early repayment of the loan, so that the consumer can calculate at least approximately the compensation payable in the event of early termination? (3) Is Article 10(2)(s) of Directive 2008/48 to be interpreted as meaning that the credit agreement (a) must also specify the parties’ rights of termination of the credit agreement regulated under national law, including in particular the borrower’s right of termination with good cause under Paragraph 314 of the BGB, in the case of fixed-term loan agreements; and (b) must indicate the time limit for and form of the declaration of termination prescribed for the purpose of exercising the right of termination for all rights of termination of the parties to the credit agreement?’
33 On 3 January 2015, RT and Volkswagen Bank concluded a credit agreement in the amount of EUR 11 257.14. On 23 May 2015, SV concluded a similar agreement with the same bank in the amount of EUR 16400. On 24 July 2014, BC and Skoda Bank concluded a credit agreement in the amount of EUR 7 332.34 (‘the agreements at issue in Case C‑155/20’). Those credit agreements were intended to finance the purchase of motor vehicles for private use: a Volkswagen for RT and for SV and a Skoda for BC. The sellers of those vehicles were, respectively, Autohaus Kilgus GmbH & Co. KG (‘Seller B’), Autohaus Humm GmbH (‘Seller C’) and Held & Ströhle GmbH & Co. KG (‘Seller D’). The sale price of the vehicle purchased by RT was EUR 15750, that purchased by SV was EUR 23900 and that purchased by BC was EUR 15940. Those consumers made down payments, respectively, of EUR 5000, EUR 7500 and EUR 8900 to Sellers B, C and D and, by means of the agreements at issue in Case C‑155/20, took out finance, respectively, of EUR 10750, EUR 16400 and EUR 7040 plus, in the case of RT and BC, EUR 507.14 and EUR 292.34, respectively, to cover a one-off contribution in respect of insurance for the outstanding debt, thus totalling EUR 11 257.14 and EUR 7 332.34, respectively.
34 The agreements at issue in Case C‑155/20 contained the same information as that reproduced in paragraph 23 above.
35 Similarly, the document referred to in paragraph 24 above, entitled ‘Standard European Consumer Credit Information’, was provided to RT, SV and BC.
36 The referring court explains that the agreements at issue in Case C‑155/20 did not state in figures the applicable rate of late-payment interest or, at the very least, the applicable reference interest rate, namely the base rate provided for in Paragraph 247 of the BGB. In addition, that court notes that the agreements also omitted to mention the arrangements for adjusting the rate of late-payment interest, since the document referred to in the preceding paragraph did not form part of those agreements because of non-compliance with the requirement of writing, laid down in Paragraph 492(1) of the BGB.
37 The agreements at issue in Case C‑155/20 also contained a clause identical to that reproduced in paragraph 26 above.
38 As regards the conditions governing termination of those agreements with good cause by the creditor, like the agreement at issue in Case C‑33/20, the agreements at issue in Case C‑155/20 did not stipulate how such termination was to be carried out or how long the creditor had in order to terminate the agreement, nor did it contain any reference to the borrower’s right to terminate the agreement under Paragraph 314 of the BGB.
39 Volkswagen Bank and Skoda Bank used the services of Sellers B, C and D in connection with the preparation and conclusion of the agreements at issue in Case C‑155/20. Those sellers, in particular, acted as credit brokers for Volkswagen Bank and Skoda Bank and used the standard agreements provided by the latter. Those agreements stipulated that, with effect, respectively, from 15 February 2015, 1 June 2015 and 3 September 2014, RT, SV and BC were required to repay the credit plus interest in the aggregate amount of EUR 669.90 in the case of RT, EUR 1 241.97 in the case of SV and EUR 225.87 in the case of BC. The relevant repayments were to be made in 48, 36 and 24 monthly instalments each of EUR 248.48, EUR 146.87 and EUR 150, respectively. SV and BC were nevertheless required to make one final payment of EUR 12 354.65 on 1 May 2018 and of EUR 3 958.21 on 3 August 2016, respectively.
40 RT duly paid the scheduled monthly instalments. However, shortly before completing performance of his payment obligations, which was due to occur on 15 December 2018, RT, by letter of 22 November 2018, withdrew from the credit agreement concluded with Volkswagen Bank on 3 January 2015.
41 SV duly paid the agreed monthly instalments and reimbursed the credit with the last monthly instalment due on 1 May 2018. On 4 June 2018, she sold the motor vehicle for which she had taken out that credit to Seller C for the sum of EUR 8 031.46. By letter of 5 January 2019, SV withdrew her declaration of intent to conclude the credit agreement entered into with Volkswagen Bank on 23 May 2015.
42 BC duly paid the agreed monthly instalments and reimbursed the credit in full with the last monthly instalment on the agreed date of 3 August 2016. By letter of 25 April 2019, she withdrew from the credit agreement concluded with Skoda Bank on 24 July 2014.
43 RT argues that the withdrawal is valid because the withdrawal period did not start to run due to the fact that the credit agreement concluded with Volkswagen Bank on 3 January 2015 contained incorrect information. Consequently, he claims repayment from Volkswagen Bank of the monthly instalments already paid in the amount of EUR 11 997.04 together with the down payment of EUR 5000 made to Seller B, that is to say, a total amount of EUR 16 927.04, less aggregate interest until the date of withdrawal in the amount of EUR 668.41. RT thus seeks reimbursement of the outstanding amount of EUR 16 258.63 as consideration for returning the purchased vehicle. RT also seeks a declaration that Volkswagen Bank refuses to take back that vehicle.
44 SV submits that, as a result of her withdrawal, the credit agreement concluded with Volkswagen Bank on 23 May 2015 was converted into a return obligation. She thus claims repayment from Volkswagen Bank of the monthly loan instalments she paid to that bank in the amount of EUR 17 641.97 together with the down payment of EUR 7500 made to Seller C, that is to say, a total amount of EUR 25 141.97, less the purchase price obtained for the motor vehicle of EUR 8 031.46, giving a total amount of EUR 17 770.51.
45 BC submits that, as a result of her withdrawal, the credit agreement concluded with Skoda Bank on 24 July 2014 was converted into a return obligation. She thus claims repayment from Skoda Bank of the loan instalments paid to that bank in the amount of EUR 7 332.34 together with the down payment of EUR 8900 paid to Seller C after delivery of the purchased vehicle. BC also seeks a declaration that Skoda Bank refuses to take back that vehicle.
46 In those circumstances, the Landgericht Ravensburg (Regional Court, Ravensburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 10(2)(l) of Directive [2008/48] to be interpreted as meaning that the credit agreement (a) must specify the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement as an absolute number or, at the very least, the current reference interest rate (in this case the base rate in accordance with Paragraph 247 of the BGB), from which the interest rate applicable in the case of late payments is obtained by adding a premium (in this case of five percentage points in accordance with Paragraph 288(1), second sentence, of the BGB), as an absolute number; and (b) must explain the specific arrangements for adjustment of the interest rate applicable in the case of late payments or, at the very least, must reference the national standards from which such arrangements follow (Paragraph 247 and Paragraph 288(1), second sentence, of the BGB)? (2) Is Article 10(2)(r) of Directive [2008/48] to be interpreted as meaning that the credit agreement must specify a particular arithmetical formula that the consumer can understand for calculating the compensation payable in the event of early repayment of the loan, so that the consumer can calculate at least approximately the compensation payable in the event of early termination? (3) Is Article 10(2)(s) of Directive 2008/48 to be interpreted as meaning (a) that the credit agreement must also specify the parties’ rights of termination of the credit agreement regulated under national law, including in particular the borrower’s right of termination with good cause under Paragraph 314 of the BGB, in the case of fixed-term loan agreements; (b) (if [part (a) of the present question] is answered in the negative) that it does not preclude a national regulation which stipulates the designation of a national special right of termination provided for by national law as mandatory information within the meaning of Article 10(2)(s) of Directive 2008/48; (c) that the credit agreement must indicate the time limit for and form of the declaration of termination prescribed for the purpose of exercising the right of termination for all rights of termination of the parties to the credit agreement? (4) In the case of a consumer credit agreement, is the creditor precluded from invoking the plea of forfeiture in respect of the exercise of the right of withdrawal of the consumer in accordance with the first sentence of Article 14(1) of Directive 2008/48 (a) if some of the mandatory information required under Article 10(2) of Directive 2008/48 has been neither properly included in the credit agreement nor subsequently duly communicated and the period of withdrawal in accordance with Article 14(1) of Directive 2008/48 has therefore not begun? (b) (if [part (a) of the present question] is answered in the negative) if the forfeiture is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties to the contract and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his or her right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer had such knowledge? (5) In the case of a consumer credit agreement, is the creditor precluded from invoking the plea of abuse of rights in respect of the exercise of the right of withdrawal of the consumer in accordance with the first sentence of Article 14(1) of Directive 2008/48 (a) if some of the mandatory information required under Article 10(2) of Directive 2008/48 has been neither properly included in the credit agreement nor subsequently duly communicated and the period of withdrawal in accordance with Article 14(1) of Directive 2008/48 has therefore not begun; (b) [if the answer is in the negative,] if the abuse of rights is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties to the contract and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his or her right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer had such knowledge?’
47 On 4 May 2017, JL and BMW Bank concluded a credit agreement in the amount of EUR 24 401.84 and, on 23 March 2016, DT concluded a similar agreement with Audi Bank, a branch of Volkswagen Bank (‘Audi Bank’), in the amount of EUR 37710 (‘the agreements at issue in Case C‑187/20’). Those credit agreements were intended to finance the purchase of motor vehicles for private use: a BMW for JL and an Audi for DT. The sellers of those vehicles were, respectively, Auer Gruppe GmbH (‘Seller E’) and Autohaus Locher (‘Seller F’). The sale price being EUR 23500, JL made a down payment of EUR 1000 to Seller E and took out finance of EUR 22500 to cover the outstanding amount plus EUR 1 901.84 to cover an insurance premium. The purchase price of DT’s vehicle was EUR 37710 and he financed the full amount using the credit obtained.
48 BMW Bank and Audi Bank used the services of Sellers E and F, respectively, in connection with the preparation and conclusion of the agreements at issue in Case C‑187/20. Both of those agreements stipulated that, with effect, respectively, from 5 May 2017 and 1 May 2016, JL and DT were required to repay the credit plus interest in the aggregate amount of EUR 1 413.14 in the case of JL and EUR 1 737.40 in the case of DT. The relevant repayments were to be made in 47 and 48 monthly instalments each of EUR 309.25 and EUR 395.65, respectively. JL and DT were nevertheless required to make one final payment of EUR 11280 on 5 April 2021 and of EUR 20 456.20 on 1 April 2020, respectively.
49 By letters of 13 June 2019 and 12 January 2019, respectively, JL and DT withdrew from the agreements at issue in Case C‑187/20.
50 JL and DT argue that the withdrawal is valid because the withdrawal period did not start to run due to the fact that those agreements contained incorrect information. In consequence, JL seeks a declaration from the referring court that the interest on, and the instalments in respect of, the principal are not payable with effect from 13 June 2019. DT claims repayment from Audi Bank of 43 monthly instalments totalling EUR 17 012.95, following the return of the purchased vehicle. DT also seeks a declaration that he is not liable for interest on, or instalments in respect of, the principal and that Audi Bank refuses to take back the vehicle concerned.
51 As is apparent from the order for reference, the agreements at issue in Case C‑187/20 do not contain any definition of the type of credit granted. However, the document entitled ‘Standard European Consumer Credit Information’ annexed to the agreement concluded by JL and which is an integral part of that agreement contained the following statement: ‘Instalment loan with equal monthly instalments and a fixed interest rate’. DT received a similar document, bearing the same name and containing the following statements: ‘Instalment loan with guaranteed right of withdrawal’ and ‘Equal monthly instalments and a higher final instalment’.
52 The referring court notes that the agreements at issue in Case C‑187/20 do not specify that, once the funds have been disbursed, the obligation to pay the sale price to the seller is extinguished to the extent of that amount and the purchaser may demand that the seller deliver the vehicle purchased upon full payment of the sale price.
53 Concerning the rate of late-payment interest, the agreement concluded by JL and BMW Bank on 4 May 2017 stated: ‘If the borrower/co-borrower defaults on payment, late-payment interest shall be charged at a rate of five percentage points per annum above the relevant base rate. The base rate is set on 1 January and 1 July of each year and is published by the German Central Bank in the Bundesanzeiger.’
54 The agreement concluded by DT and Audi Bank on 23 March 2016 contained the following statement: ‘If the agreement is terminated, we will charge you late-payment interest at the statutory rate. The annual rate of late-payment interest shall be five percentage points above the relevant base rate.’
55 Furthermore, the document received by DT, referred to in paragraph 51 above, stated: ‘The annual rate of late-payment interest shall be five percentage points above the relevant base rate. The base rate is determined by the German Central Bank and is set on 1 January and 1 July of each year.’
56 However, that document was not an integral part of the agreement concluded by DT and Audi Bank on 23 March 2016 because of non-compliance with the requirement of writing, laid down in Paragraph 492(1) of the BGB.
57 The referring court notes that the arrangements for adjusting the rate of late-payment interest are not fully explained in the agreements at issue in Case C‑187/20. Although the terms of the agreement concluded by JL and BMW Bank on 4 May 2017 referred to the setting of the base rate by the German Central Bank twice a year, that agreement does not specify that that rate corresponds to the interest rate for the most recent main refinancing operation carried out by the European Central Bank, nor does it refer to Paragraph 247(1) of the BGB which is relevant in that regard.
58 Similarly, neither the agreement concluded by DT and Audi Bank on 23 March 2016 nor the document entitled ‘Standard European Information’ indicate the basis on which the base rate referred to in that agreement is set.
59 The agreements at issue in Case C‑187/20 also contained a clause identical to that reproduced in paragraph 26 above.
60 Concerning the borrower’s right to terminate the agreement with good cause, the agreement concluded by JL and BMW Bank on 4 May 2017 did not contain any reference to Paragraph 314 of the BGB and did not state that termination under that provision must take place within a reasonable time. The agreement concluded by DT and Audi Bank on 23 March 2016 contained no reference to the borrower’s right of termination with good cause under Paragraph 314 of the BGB. While that agreement provided for a right of termination by the creditor with good cause, it did not, however, specify the procedure for such termination or the period within which it had to be carried out. In particular, that agreement did not contain any indication that such termination must be recorded on a durable medium, in accordance with Paragraph 492(5) of the BGB.
61 As regards information on a possible out-of-court complaint mechanism, the agreement concluded by JL and BMW Bank on 4 May 2017 did not stipulate the conditions for access to that mechanism, such as the requirement for a description of the dispute, the submission of a specific request and the sending of copies of the necessary documents. In that regard, that agreement simply contained a reference to the ‘“Rules of procedure for the settlement of customer complaints in the German banking industry”, available on request or for consultation on the website of the Bundesverband deutscher Banken e.V. [(Federal Association of German Banks)] www.bdb.de’. The agreement concluded by DT and Audi Bank on 23 March 2016 contained the same information, but also stated that ‘complaints must be submitted in writing (for instance, by letter, fax or email) to the Customer Complaints Office of the Bundesverband deutscher Banken e.V., Postfach 040307, 10062 Berlin, fax: 030 16633169, email: ombudsmann@bdb.de’.
62 In those circumstances, the Landgericht Ravensburg (Regional Court, Ravensburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is Article 10(2)(a) of Directive [2008/48] to be interpreted as meaning that, with regard to the type of credit, it may be necessary to specify that it is a linked credit agreement and/or that it is a fixed-term credit agreement? (2) Is Article 10(2)(d) of Directive 2008/48 to be interpreted as meaning that, with regard to the conditions governing the drawdown of the credit in the case of linked credit agreements for financing the purchase of an item, it is necessary to specify, in the event that the credit amount is disbursed to the seller, that the borrower is released from his or her liability to pay the purchase price to the extent of the amount disbursed and that the seller must hand over the purchased item to him or her if the purchase price has been paid in full? (3) Is Article 10(2)(l) of Directive 2008/48 to be interpreted as meaning that the credit agreement (a) must specify the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement as an absolute number or, at the very least, the current reference interest rate (in this case, the base rate in accordance with Paragraph 247 of the BGB), from which the interest rate applicable in the case of late payments is obtained by adding a premium (in this case, a premium of five percentage points in accordance with Paragraph 288(1), second sentence, of the BGB); and (b) must explain the specific arrangements for adjustment of the interest rate applicable in the case of late payments or, at the very least, must reference the national standards from which such arrangements follow (Paragraph 247 and Paragraph 288(1), second sentence, of the BGB)? (4) (a) Is Article 10(2)(r) of Directive 2008/48 to be interpreted as meaning that the credit agreement must specify a particular arithmetical formula that the consumer can understand for calculating the compensation payable in the event of early repayment of the loan, so that the consumer can calculate at least approximately the compensation payable in the event of early termination? (b) (if [part (a) of the present question] is answered in the affirmative) Do Article 10(2)(r) and the second sentence of Article 14(1) of Directive 2008/48 preclude national legislation pursuant to which, in the case of incomplete information within the meaning of Article 10(2)(r) of that directive, the period for withdrawal nevertheless commences on conclusion of the agreement and only the creditor’s right to compensation for early repayment of the credit is lost? (5) Is Article 10(2)(s) of Directive 2008/48 to be interpreted as meaning (a) that the credit agreement must also specify the rights of termination of the parties to the credit agreement regulated under national law, including in particular the borrower’s right of termination with good cause under Paragraph 314 of the BGB, in the case of fixed-term loan agreements, and that express reference must be made to the paragraph in which that right of termination is regulated; (b) (if [part (a) of the present question] is answered in the negative) that it does not preclude national legislation which stipulates the designation of a national special right of termination as mandatory information within the meaning of Article 10(2)(s) of Directive 2008/48? (c) that the credit agreement must indicate the time limit for and form of the declaration of termination prescribed for the purpose of exercising the right of termination for all rights of termination of the parties to the credit agreement? (6) Is Article 10(2)(t) of Directive 2008/48 to be interpreted as meaning that the essential formal requirements for a complaint and/or application for redress in out-of-court complaint and/or redress procedures must be specified in the credit agreement? Is it insufficient in this respect if reference is made to rules of procedure, which can be accessed on the internet, for out-of-court complaint and/or redress procedures? (7) In the case of a consumer credit agreement, is the creditor precluded from invoking the plea of forfeiture in respect of the exercise of the right of withdrawal of the consumer pursuant to the first sentence of Article 14(1) of Directive 2008/48 (a) if some of the mandatory information required under Article 10(2) of Directive 2008/48 has been neither properly included in the credit agreement nor subsequently duly communicated and the period of withdrawal in accordance with Article 14(1) of Directive 2008/48 has therefore not begun; (b) (if [part (a) of the present question] is answered in the negative) if the forfeiture is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties to the contract and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his or her right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer had such knowledge? (8) In the case of a consumer credit agreement, is the creditor precluded from invoking the plea of abuse of rights in respect of the exercise of the right of withdrawal of the consumer in accordance with the first sentence of Article 14(1) of Directive 2008/48 (a) if some of the mandatory information required under Article 10(2) of Directive 2008/48 has been neither properly included in the credit agreement nor subsequently duly communicated and the period of withdrawal in accordance with Article 14(1) of Directive 2008/48 has therefore not begun; (b) (if [part (a) of the present question] is answered in the negative) if the abuse of rights is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties to the contract and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his or her right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer had such knowledge?’
63 By decision of the President of the Court of 18 December 2020, Cases C‑33/20, C‑155/20 and C‑187/20 were joined for the purposes of the oral procedure and the judgment.
64 Since a number of the questions in Cases C‑33/20, C‑155/20 and C‑187/20 are similar or identical, they should be examined together.
65 By Question 1 in Case C‑187/20, the referring court seeks, in essence, to ascertain whether Article 10(2)(a), (c) and (e) of Directive 2008/48 must be interpreted as meaning that, where the situation arises, a credit agreement must state in a clear and concise manner that it is a ‘linked credit agreement’ within the meaning of Article 3(n) of that directive and that the agreement is concluded for a fixed term.
66 In that regard, it must be observed that Article 3(n) of Directive 2008/48 defines the concept of ‘linked credit agreement’ as follows: ‘the credit in question serves exclusively to finance an agreement for the supply of specific goods or the provision of a specific service, and … those two agreements form, from an objective point of view, a commercial unit; a commercial unit shall be deemed to exist where … the creditor uses the services of the supplier or service provider in connection with the conclusion or preparation of the credit agreement, or where the specific goods or the provision of a specific service are explicitly specified in the credit agreement’.
67 In Case C‑187/20, it follows from the order for reference that the creditors used the services of Sellers E and F in connection with the preparation and conclusion of the agreements at issue in that case and that the credit granted pursuant to those agreements was intended exclusively to finance the supply of vehicles for private use. Therefore, such agreements must be regarded as ‘linked credit agreements’ within the meaning of Article 3(n) of Directive 2008/48.
68 Furthermore, as is apparent from the order for reference, the agreements at issue in Case C‑187/20 were concluded for a fixed term.
69 In that regard, it must be borne in mind that under Article 10(2)(a), (c) and (e) of Directive 2008/48, a credit agreement must state in a clear and concise manner the type of credit, the duration of the credit agreement and, in the case of a credit in the form of deferred payment for a specific good or service or in the case of linked credit agreements, that good or service and its cash price.
70 As is apparent from Article 10(2) of Directive 2008/48, read in the light of recital 31 thereof, the requirement to include the information referred to in that provision in a credit agreement drawn up on paper or on another durable medium in a clear and concise manner is necessary in order to ensure that the consumer is aware of his or her rights and obligations (judgment of 26 March 2020, Kreissparkasse Saarlouis, C‑66/19, EU:C:2020:242, paragraph 35 and the case-law cited).
71 Knowledge and good understanding, on the part of the consumer, of the information that must be mandatorily included in the credit agreement, in accordance with Article 10(2) of Directive 2008/48, are necessary for the proper performance of the agreement (judgment of 26 March 2020, Kreissparkasse Saarlouis, C‑66/19, EU:C:2020:242, paragraph 45).
72 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 (judgment of 26 March 2020, Kreissparkasse Saarlouis, C‑66/19, EU:C:2020:242, paragraph 36 and the case-law cited).
73 The statement that the agreement in question is a ‘linked credit agreement’ within the meaning of Article 3(n) of Directive 2008/48 and that it is concluded for a fixed term is, from the consumer’s perspective, of fundamental importance in enabling him or her to be genuinely apprised of his or her rights and obligations.
74 Accordingly, the answer to Question 1 in Case C‑187/20 is that Article 10(2)(a), (c) and (e) of Directive 2008/48 must be interpreted as meaning that, where the situation arises, a credit agreement must state in a clear and concise manner that it is a ‘linked credit agreement’ within the meaning of Article 3(n) of that directive and that the agreement is concluded for a fixed term.
75 By Question 2 in Case C‑187/20, the referring court asks, in essence, whether Article 10(2) of Directive 2008/48 is to be interpreted as meaning that it requires a ‘linked credit agreement’ within the meaning of Article 3(n) thereof, which serves exclusively to finance an agreement for the supply of goods and stipulates that the credit amount is to be paid to the seller of those goods, to state that the consumer is released from his or her obligation to pay the sale price to the extent of the amount disbursed and that the seller is required to deliver the purchased goods to the consumer if the sale price has been paid in full.
76 In that regard, it must be borne in mind that under Article 10(2) of Directive 2008/48, a credit agreement must state in a clear and concise manner the total amount of the credit, the conditions governing drawdown and, in the case of a credit in the form of deferred payment for a specific good or service or in the case of linked credit agreements, that good or service and its cash price.
77 Concerning the formal requirements governing ‘linked credit agreements’ within the meaning of Article 3(n) of Directive 2008/48, Article 10(2) thereof requires only that the credit agreement specify the good or service concerned and its cash price.
78 Although Article 10(2)(d) of Directive 2008/48 provides that the total amount of the credit and the conditions governing drawdown must be mandatorily included in the credit agreement, nothing in that directive requires the agreement to state the consequences of that drawdown as regards the contractual relationship between the consumer and the seller of the goods or services financed by the credit.
79 That said, Article 10(2) of Directive 2008/48 does not preclude the parties to a credit agreement, acting by common accord, from defining those consequences in the agreement.
80 In those circumstances, the following answer should be given to Question 2 in Case C‑187/20: Article 10(2) of Directive 2008/48 is to be interpreted as meaning that it does not require a ‘linked credit agreement’ within the meaning of Article 3(n) thereof, which serves exclusively to finance an agreement for the supply of goods and stipulates that the credit amount is to be paid to the seller of those goods, to state that the consumer is released from his or her obligation to pay the sale price to the extent of the amount disbursed and that the seller is required to deliver the purchased goods to the consumer if the sale price has been paid in full.
81 By Question 1 in Cases C‑33/20 and C‑155/20 and Question 3 in Case C‑187/20, the referring court asks, in essence, whether Article 10(2)(l) of Directive 2008/48 is to be interpreted as meaning that a credit agreement must state, in the form of a specific percentage, the rate of late-payment interest applicable at the time of conclusion of that agreement and must explain the specific arrangements for adjusting the rate of late-payment interest.
82 It should be borne in mind that, under the first subparagraph of Article 10(1) of Directive 2008/48, credit agreements are to be drawn up on paper or on another durable medium. Article 10(2)(l) of that directive provides that a credit agreement must state in a clear and concise manner the rate of late-payment interest applicable at the time of conclusion of the credit agreement, the arrangements for adjusting that rate and, where applicable, any charges payable for default.
83 It is apparent from the orders for reference that the agreements at issue in each of the main actions stated that the rate of late-payment interest was ‘five percentage points above the relevant base rate’. It is also apparent from the orders for reference that the document entitled ‘Standard European Consumer Credit Information’, which was provided to the consumers in those actions, stated that ‘the annual rate of late-payment interest shall be five percentage points above the relevant base rate. The base rate is determined by the German Central Bank and is set on 1 January and 1 July of each year’. However, the orders for reference show that that document was not an integral part of those agreements. Only the agreement at issue in Case C‑187/20, concluded by JL and BMW Bank, expressly stipulated that ‘the base rate is set on 1 January and 1 July of each year and is published by the German Central Bank in the Bundesanzeiger’.
84 In that regard, it follows from the Court’s case-law that although a credit agreement need not necessarily be drawn up in a single document, the fact remains that all the information listed in Article 10(2) of Directive 2008/48 must be set out on paper or on another durable medium (judgment of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraph 45 and the operative part).
85 In so far as the information referred to in Article 10(2) of that directive must be included in a clear and concise manner, a credit agreement must contain a clear and precise cross-reference to other paper, or other durable, media containing the information that was actually given to the consumer prior to the conclusion of the agreement so as to give him or her the opportunity to be genuinely apprised of all his or her rights and obligations (judgment of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraph 34).
86 Accordingly, it is for the referring court to determine whether that is the situation in the cases in the main proceedings.
87 As regards the interpretation of Article 10(2)(l) of Directive 2008/48, it should be noted that the wording of that provision requires the inclusion in the credit agreement of the rate of late-payment interest applicable at a given point in time, namely that of conclusion of the agreement. In addition, concerning changes in that rate after conclusion of the credit agreement, that provision requires the arrangements for adjusting the rate to be stated.
88 As the Advocate General essentially found in points 57 to 60 of his Opinion, it follows from the wording of Article 10(2)(l) of Directive 2008/48 that the credit agreement must state the rate of late-payment interest applicable at the time of conclusion of the agreement, specifically, in the form of a percentage, not just define that rate or the calculation formula used for that purpose.
89 Concerning the general scheme of that directive, it is apparent from the definition of the annual percentage rate of charge, the borrowing rate and the fixed borrowing rate set out in Article 3 thereof that those different types of rate must be expressed as a percentage.
90 So far as concerns the objectives of Directive 2008/48 and, specifically, of Article 10 thereof, as recalled in paragraph 70 above, the requirement to include the information referred to in that provision in a credit agreement in a clear and concise manner is necessary in order to ensure that the consumer is aware of his or her rights and obligations.
91 Where an agreement concluded by a consumer refers to certain provisions of national law as regards information which must be provided pursuant to Article 10 of Directive 2008/48, the consumer is not in a position, on the basis of the agreement, to determine the scope of his or her contractual obligations (see, to that effect, judgment of 26 March 2020, Kreissparkasse Saarlouis, C‑66/19, EU:C:2020:242, paragraph 44).
92 As the Advocate General observed in point 64 of his Opinion, the requirement to state the specific rate of late-payment interest, expressed as a percentage, in the credit agreement enables consumers to be aware of the consequences of any delay in payment.
93 Since the rate of late-payment interest applicable at the time of conclusion of the credit agreement is information that can be expressed as a figure, unlike a variable interest rate, that rate must be specifically stated in the credit agreement in the form of a percentage.
94 Concerning the obligation laid down in Article 10(2)(l) of Directive 2008/48 to include in the credit agreement in a clear and concise manner the arrangements for adjusting the rate of late-payment interest where, as in the main proceedings, the parties to the credit agreement concerned have agreed that the rate of late-payment interest is to change in step with a change in the base rate set by the central bank of a Member State and published in its easy-to-access official journal, a reference in that agreement to that base rate is such as to enable an average consumer who is reasonably observant and circumspect to ascertain and understand the arrangements for varying the rate of late-payment interest, provided that the method of calculating the rate of late-payment interest is set out in the credit agreement. In that regard, two conditions must be met. First, that method of calculation must be set out in a way which is readily understood by an average consumer who does not have specialist knowledge in the financial field and which enables him or her to calculate the rate of late-payment interest based on the information provided in the credit agreement. Secondly, the frequency with which the base rate may be varied, which is determined by national provisions, must also be set out in that agreement (see, by analogy, judgment of 3 March 2020, Gómez del Moral Guasch, C‑125/18, EU:C:2020:138, paragraph 53).
95 Accordingly, the following answer should be given to Question 1 in Cases C‑33/20 and C‑155/20 and Question 3 in Case C‑187/20: Article 10(2)(l) of Directive 2008/48 is to be interpreted as meaning that a credit agreement must state, in the form of a specific percentage, the rate of late-payment interest applicable at the time of conclusion of that agreement and must explain the specific arrangements for adjusting the rate of late-payment interest. Where the parties to the credit agreement concerned have agreed that the rate of late-payment interest is to change in step with a change in the base rate set by the central bank of a Member State and published in an easy-to-access official journal, a reference in that agreement to that base rate is sufficient, provided that the method of calculating the rate of late-payment interest relative to the base rate is set out in the credit agreement. In that regard, two conditions must be met. In the first place, that method of calculation must be set out in a way which is readily understood by an average consumer who does not have specialist knowledge in the financial field and must enable him or her to calculate the rate of late-payment interest based on the information provided in the credit agreement. In the second place, the frequency with which the base rate may be varied, which is determined by national provisions, must also be set out in the credit agreement concerned.
96 By Question 2 in Cases C‑33/20 and C‑155/20 and Question 4 in Case C‑187/20, the referring court asks, in essence, whether Article 10(2)(r) of Directive 2008/48 is to be interpreted as meaning that a credit agreement must specify a particular arithmetical formula that the consumer can understand for calculating the compensation payable in the event of early repayment of the loan, so that the consumer can calculate the amount of compensation payable in the event of such early repayment.
97 In order to answer those questions, it should be recalled that, under Article 10(2)(r) of Directive 2008/48, a credit agreement must specify in a clear and concise manner ‘the right of early repayment, the procedure for early repayment, as well as, where applicable, information concerning the creditor’s right to compensation and the way in which that compensation will be determined’.
98 In the present case, it is apparent from the orders for reference that the credit agreements at issue in the main proceedings stipulate that ‘the bank shall calculate the loss in accordance with the financial arithmetic framework established by the Bundesgerichtshof (Federal Court of Justice)’.
99 In that regard, it follows from the Court’s case-law that where Directive 2008/48 provides for an obligation on the part of the seller or supplier to inform the consumer of the substance of the contractual obligation proposed to him or her, certain aspects of which are specified by mandatory statutory or regulatory provisions of a Member State, that seller or supplier is required to inform the consumer in a clear and concise manner of the contents of those provisions in order to ensure that he or she is aware of his or her rights and obligations (see, to that effect, judgment of 26 March 2020, Kreissparkasse Saarlouis, C‑66/19, EU:C:2020:242, paragraph 46 and the case-law cited).
100 While it is not necessary, for that purpose, as regards the compensation payable in the event of early repayment, referred to in Article 10(2)(r) of Directive 2008/48, for the credit agreement to specify the arithmetical formula to be used to calculate that compensation, it must nevertheless state the specific method for calculating that compensation in a way which is readily understood by an average consumer, so that he or she can ascertain the amount of compensation payable in the event of early repayment based on the information provided in the credit agreement.
101 A mere reference, for the purpose of calculating the compensation payable in the event of early repayment of the loan, to the financial arithmetic framework established by a national court, in the present case by the Bundesgerichtshof (Federal Court of Justice), does not satisfy the requirement mentioned in paragraph 99 above that the consumer must be informed of the content of his or her contractual obligations.
102 In the light of the foregoing considerations, the following answer should be given to Question 2 in Cases C‑33/20 and C‑155/20 and Question 4 in Case C‑187/20: Article 10(2)(r) of Directive 2008/48 is be interpreted as meaning that a credit agreement must, for the purpose of calculating the compensation payable in the event of early repayment of the loan, state the specific method for calculating that compensation in a way which is readily understood by an average consumer, so that he or she can ascertain the amount of compensation payable in the event of early repayment based on the information provided in the credit agreement.
103 By Question 3 in Cases C‑33/20 and C‑155/20 and Question 5 in Case C‑187/20, the referring court asks, in essence, whether Article 10(2) of Directive 2008/48 is to be interpreted as meaning that a credit agreement must set out all the situations in which the parties to the agreement have a right of termination under national legislation, such as the borrower’s right of termination with good cause, and whether the agreement must specify the time limit for and form of the declaration of termination in each of those situations.
104 As a preliminary point, it should be borne in mind that, as provided in Article 10(2)(s) of Directive 2008/48, a credit agreement must state in a clear and concise manner ‘the procedure to be followed in exercising the right of termination of the credit agreement’.
105 Furthermore, Article 13 of that directive lays down the circumstances in which the consumer and the creditor may terminate an open-end credit agreement, it being clear that that directive does not grant any right of termination in respect of fixed-term agreements. Accordingly, the ‘right of termination’ appearing in Article 10(2)(s) of Directive 2008/48 is to be interpreted as referring to the right of termination provided for in Article 13 thereof.
106 It follows that Directive 2008/48 does not impose any obligation to include in a credit agreement information on the right to terminate fixed-term credit agreements.
107 As is apparent from the orders for reference in the present cases, the agreements at issue in those cases were concluded for a fixed term.
108 In that regard, it should be noted that so far as concerns credit agreements falling 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 (judgment of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraph 55).
109 Article 10(2) of Directive 2008/48 provides for such harmonisation as regards the information which must imperatively be included in a credit agreement (judgment of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraph 56).
110 It is true that a Member State may provide, in its national legislation, for the possibility of terminating fixed-term credit agreements. However, Article 10(2)(s) and Article 13 of Directive 2008/48, read in conjunction with Article 22(1) thereof, preclude legislation of a Member State from imposing an obligation to provide information in such a credit agreement on a right of termination found not in Directive 2008/48, but in that national legislation alone.
111 That said, Directive 2008/48 does not preclude the parties to a credit agreement, which have decided, by common accord, to provide for a right to terminate the agreement in cases other than those referred to in Article 13 of that directive, from including that right in that agreement (see, to that effect, judgment of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraphs 57 and 58).
112 In the light of the foregoing, the following answer should be given to Question 3 in Cases C‑33/20 and C‑155/20 and Question 5 in Case C‑187/20: Article 10(2) of Directive 2008/48 must be interpreted as meaning that it does not require a credit agreement to set out all the situations in which the parties to the agreement enjoy a right of termination not under that directive, but under national legislation alone.
113 By Question 4 in Case C‑155/20 and Question 7 in Case C‑187/20, the referring court asks, in essence, whether Directive 2008/48 is to be interpreted as precluding a creditor from relying on a time bar when a consumer exercises his or her right of withdrawal under Article 14(1) of Directive 2008/48, in circumstances where some of the mandatory information listed in Article 10(2) of that directive was not included in the credit agreement and was also not duly communicated at a later stage, and where the consumer was unaware of the existence of his or her right of withdrawal and was not responsible for that lack of knowledge.
114 In order to answer those questions, it must be borne in mind that it follows from point (b) of the second subparagraph of Article 14(1) of Directive 2008/48 that the 14-day period of withdrawal does not begin until the information referred to in Article 10 thereof is provided to the consumer, if that day is later than the day of conclusion of the credit agreement. Article 10 lists the information that must be included in credit agreements.
115 As is apparent from paragraph 108 above, so far as concerns credit agreements falling 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.
116 As the Advocate General observed in point 101 of his Opinion, the temporal requirements for the exercise by the consumer of his or her right of withdrawal fall within the scope of the harmonisation carried out by Article 14 of Directive 2008/48.
117 Accordingly, since Directive 2008/48 does not provide for any temporal limitation on the exercise by the consumer of his or her right of withdrawal where that information has not been provided to him or her, a Member State cannot impose such a limitation in national legislation.
118 The following answer should therefore be given to Question 4 in Case C‑155/20 and Question 7 in Case C‑187/20: Article 14(1) of Directive 2008/48 is to be interpreted as precluding a creditor from relying on a time bar when a consumer exercises his or her right of withdrawal under that provision, in circumstances where some of the mandatory information listed in Article 10(2) thereof was not included in the credit agreement and was also not duly communicated at a later stage, irrespective of whether the consumer was unaware of the existence of his or her right of withdrawal and was not responsible for that lack of knowledge.
119 By Question 5 in Case C‑155/20 and Question 8 in Case C‑187/20, the referring court asks, in essence, whether Directive 2008/48 is to be interpreted as precluding a creditor from legitimately claiming that a consumer has abused his or her right of withdrawal, laid down in Article 14(1) of that directive, where, on the one hand, some of the mandatory information listed in Article 10(2) thereof was not included in the credit agreement and, further, was not duly communicated at a later stage, and, on the other hand, the consumer was unaware of the existence of his or her right of withdrawal and was not responsible for that lack of knowledge.
120 In order to answer those questions, it must be observed that Directive 2008/48 does not contain provisions governing the abuse by a consumer of the rights conferred on him or her by that directive.
121 That said, it is necessary to determine whether the exercise by a consumer of his or her right of withdrawal pursuant to Article 14(1) of Directive 2008/48 is limited as a result of the application, in the present case, of the general principle of EU law that EU law cannot be relied on for abusive or fraudulent ends.
122 As is apparent from the Court’s case-law, proof of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved and, secondly, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (judgment of 26 February 2019, T Danmark and Y Denmark, C‑116/16 and C‑117/16, EU:C:2019:135, paragraph 97 and the case-law cited).
123 It should be noted that the objective pursued by Article 14 of Directive 2008/48 is to allow a consumer to choose the agreement best suited to his or her needs and, thus, to withdraw from an agreement that has been concluded but proves to be unsuitable to the needs of that consumer in the course of the cooling-off period during which the right of withdrawal may be exercised (see, by analogy, judgment of 19 December 2019, Rust-Hackner and Others, C‑355/18 to C‑357/18 and C‑479/18, EU:C:2019:1123, paragraph 101).
124 In addition, as the Advocate General observed, in essence, in points 117 and 118 of his Opinion, the objective of point (b) of the second subparagraph of Article 14(1) of Directive 2008/48 is to ensure that consumers receive all the information necessary to assess the extent of their contractual obligations and to penalise creditors who fail to provide them with the information listed in Article 10 thereof.
125 The penalties provided for in EU directives in the field of consumer protection are intended to dissuade traders from infringing their obligations under the provisions of those directives vis-à-vis consumers (see, by analogy, judgments of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 84, and of 25 November 2020, Banca B., C‑269/19, EU:C:2020:954, paragraphs 34 and 38).
126 Therefore, where a trader has failed to provide a consumer with the information listed in Article 10 of Directive 2008/48 and the consumer decides to withdraw from the credit agreement after the 14-day period following its conclusion, that trader cannot complain that the consumer has abused his or her right of withdrawal, even if a considerable length of time has elapsed between conclusion of that agreement and withdrawal by the consumer.
127 In the light of the foregoing considerations, the following answer should be given to Question 5 in Case C‑155/20 and Question 8 in Case C‑187/20: Directive 2008/48 is to be interpreted as precluding a creditor from legitimately claiming that a consumer has abused his or her right of withdrawal, laid down in Article 14(1) of that directive, where some of the mandatory information listed in Article 10(2) thereof was not included in the credit agreement and, further, was not duly communicated at a later stage, irrespective of whether the consumer was unaware of the existence of his or her right of withdrawal.
128 By Question 6 in Case C‑187/20, the referring court asks essentially whether Article 10(2)(t) of Directive 2008/48 is to be interpreted as meaning that a credit agreement must specify the essential formal requirements for initiating an out-of-court complaint or redress procedure or whether it is sufficient for the agreement to refer in that regard to rules of procedure available on the internet.
129 Article 10(2)(t) of Directive 2008/48 provides that a credit agreement must state in a clear and concise manner ‘whether or not there is an out-of-court complaint and redress mechanism for the consumer and, if so, the methods for having access to it’.
130 According to settled case-law, it is necessary, with regard to the interpretation of provisions of EU law, to consider not only their wording but also the context and the objectives of the legislation of which they form part (judgment of 25 June 2020, Bundesverband der Verbraucherzentralen und Verbraucherverbände, C‑380/19, EU:C:2020:498, paragraph 25 and the case-law cited).
131 Concerning the context of Article 10(2)(t) of Directive 2008/48, it should be noted that Article 10(2) thereof states that the information referred to in that provision, including the arrangements for access to out-of-court complaint and redress mechanisms for the consumer, must be stated in a clear and concise manner.
132 It follows that the information contained in the credit agreement in that regard must be sufficiently clear and comprehensive so as to enable consumers to initiate such a complaint or redress procedure, but need not reproduce all the procedural rules governing those procedures.
133 As to the objective of Article 10(2)(t) of Directive 2008/48, it should be noted that that provision seeks to ensure a high level of consumer protection by ensuring that consumers may, on a voluntary basis, submit complaints or applications for redress against creditors with entities applying out-of-court dispute resolution procedures (see, by analogy, judgment of 25 June 2020, Bundesverband der Verbraucherzentralen und Verbraucherverbände, C‑380/19, EU:C:2020:498, paragraph 26).
134 In order for consumers to be able to make use of that option, they should be informed about the existing out-of-court redress mechanisms. When a dispute arises, it is necessary that consumers are able to identify quickly which out-of-court dispute resolution entities are competent to deal with their complaint and to know whether or not the trader concerned will participate in proceedings submitted to such an entity (see, by analogy, judgment of 25 June 2020, Bundesverband der Verbraucherzentralen und Verbraucherverbände, C‑380/19, EU:C:2020:498, paragraph 27).
135 Article 10(2)(t) of Directive 2008/48 thus seeks to ensure that the consumer is able to decide, in full knowledge of the facts, whether it is appropriate for him or her to have recourse to one of the out-of-court complaint and redress procedures, and to ensure that he or she is actually in a position to initiate such a complaint or redress procedure based on the information contained in the credit agreement.
136 As the Advocate General stated in point 94 of his Opinion, it is crucial, for that purpose, that the consumer be informed (i) about all out-of-court complaint or redress mechanisms available to him or her and, where appropriate, the cost of using them; (ii) of the fact that the complaint or application for redress must be submitted by post or electronically; (iii) of the physical or electronic address to which that complaint or application for redress should be sent; and (iv) of the other formal requirements to be satisfied by that complaint or application for redress.
137 As regards the information referred to in the previous paragraph, a mere reference, in the credit agreement, to rules of procedure available on the internet or to another act or document concerning the detailed rules governing out-of-court complaint and redress mechanisms is insufficient (see, by analogy, judgment of 26 March 2020, Kreissparkasse Saarlouis, C‑66/19, EU:C:2020:242, paragraph 47 and the case-law cited).
138 In the light of all the above considerations, the following answer should be given to Question 6 in Case C‑187/20: Article 10(2)(t) of Directive 2008/48 is to be interpreted as meaning that a credit agreement must specify the essential information relating to all out-of-court complaint or redress mechanisms available to the consumer and, where appropriate, the costs of using them; that the complaint or application for redress must be submitted by post or electronically; the physical or electronic address to which that complaint or application for redress should be sent; and the other formal requirements to be satisfied by that complaint or application for redress. As regards that information, a mere reference, in the credit agreement, to rules of procedure available on the internet or to another act or document concerning the detailed rules governing out-of-court complaint and redress mechanisms is insufficient.
139 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.