1 This request for a preliminary ruling concerns the interpretation of Article 10(2)(l) and Article 14(1) and (3)(b) 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 The request has been made in the context of two disputes between KI and Mercedes-Benz Bank AG and between FA and Volkswagen Bank GmbH, respectively, concerning the validity of the withdrawal exercised by KI and FA in respect of the credit agreements they entered into, as consumers, with those banks.
3 Recital 14 of 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), replaced by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64), stated: ‘… it is for the Member States to determine the … conditions and arrangements following exercise of the right of withdrawal’.
4 Under recitals 7 to 10, 31, 34 and 35 of Directive 2008/48: ‘(7) In order to facilitate the emergence of a well-functioning internal market in consumer credit, it is necessary to make provision for a harmonised Community framework in a number of core areas. In view of the continuously developing market in consumer credit and the increasing mobility of European citizens, forward-looking Community legislation which is able to adapt to future forms of credit and which allows Member States the appropriate degree of flexibility in their implementation should help to establish a modern body of law on consumer credit. (8) It is important that the market should offer a sufficient degree of consumer protection to ensure consumer confidence. Thus, it should be possible for the free movement of credit offers to take place under optimum conditions for both those who offer credit and those who require it, with due regard to specific situations in the individual Member States. (9) Full harmonisation is necessary in order to ensure that all consumers in the Community enjoy a high and equivalent level of protection of their interests and to create a genuine internal market. Member States should therefore not be allowed to maintain or introduce national provisions other than those laid down in this Directive. However, such restriction should only apply where there are provisions harmonised in this Directive. … Where no such harmonised provisions exist, Member States should remain free to maintain or introduce national legislation. Accordingly, Member States may, for instance, maintain or introduce national provisions on joint and several liability of the seller or the service provider and the creditor. Another example of this possibility for Member States could be the maintenance or introduction of national provisions on the cancellation of a contract for the sale of goods or supply of services if the consumer exercises his right of withdrawal from the credit agreement. … (10) The definitions contained in this Directive determine the scope of harmonisation. The obligation on Member States to implement the provisions of this Directive should therefore be limited to its scope as determined by those definitions. However, this Directive should be without prejudice to the application by Member States, in accordance with Community law, of the provisions of this Directive to areas not covered by its scope. A Member State could thereby maintain or introduce national legislation corresponding to the provisions of this Directive or certain of its provisions on credit agreements outside the scope of this Directive, … Furthermore, Member States could … apply the provisions of this Directive to linked credit which does not fall within the definition of a linked credit agreement as contained in this Directive. Thus, the provisions on linked credit agreements could be applied to credit agreements that serve only partially to finance a contract for the supply of goods or provision of a service. … (31) In order to enable the consumer to know his [or her] rights and obligations under the credit agreement, it should contain all necessary information in a clear and concise manner. … (34) In order to approximate the procedures for exercising the right of withdrawal in similar areas, it is necessary to make provision for a right of withdrawal without penalty and with no obligation to provide justification, under conditions similar to those provided for by Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC [(OJ 2002 L 271, p. 16)]. (35) Where a consumer withdraws from a credit agreement in connection with which he has received goods, in particular from a purchase in instalments or from a hiring or leasing agreement providing for an obligation to purchase, this Directive should be without prejudice to any regulation by Member States of questions concerning the return of the goods or any related questions.’
5 Article 1 of Directive 2008/48, entitled ‘Subject matter’, provides: ‘The purpose of this Directive is to harmonise certain aspects of the laws, regulations and administrative provisions of the Member States concerning agreements covering credit for consumers.’
6 Article 3 of that directive, entitled ‘Definitions’, provides: ‘For the purposes of this Directive, the following definitions shall apply: … (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.’
7 Article 10 of the directive, entitled ‘Information to be included in credit agreements’, reads as follows in paragraph 2: ‘The credit agreement shall specify in a clear and concise manner: … (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; …’
8 Under the terms of Article 14 of that directive, entitled ‘Right of withdrawal’: ‘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. … 3. If the consumer exercises his [or her] right of withdrawal, he [or she] shall: … (b) pay to the creditor the capital and the interest accrued thereon from the date the credit was drawn down until the date the capital is repaid, without any undue delay and no later than 30 calendar days after the despatch by him [or her] to the creditor of notification of the withdrawal. The interest shall be calculated on the basis of the agreed borrowing rate. The creditor shall not be entitled to any other compensation from the consumer in the event of withdrawal, except compensation for any non-returnable charges paid by the creditor to any public administrative body. …’
9 Article 15 of Directive 2008/48, entitled ‘Linked credit agreements’, provides in paragraph 1: ‘Where the consumer has exercised a right of withdrawal, based on Community law, concerning a contract for the supply of goods or services, he shall no longer be bound by a linked credit agreement.’
10 Article 22 of that directive, entitled ‘Harmonisation and imperative nature of this Directive’, provides 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.’
11 Under Paragraph 355 of the Bürgerliches Gesetzbuch (Civil Code) (‘the BGB’), entitled ‘Right of withdrawal in contracts concluded with consumers’: ‘(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 contract if the consumer has withdrawn his [or her] declaration to that effect within the prescribed period. … (2) The withdrawal period is 14 days. Unless otherwise specified, it begins at the time the contract is concluded. …’
12 Paragraph 356b of the BGB, entitled ‘Right of withdrawal in consumer credit agreements’, provides in subparagraph 2: ‘If, in the context of a general consumer credit agreement, the document provided to the borrower pursuant to the first subparagraph does not contain the mandatory information specified in Paragraph 492(2), the period shall only begin to run once this deficiency has been remedied in accordance with Paragraph 492(6). …’
13 Paragraph 357 of the BGB, entitled ‘Legal consequences of withdrawal from contracts concluded outside business premises and at a distance, with the exception of contracts relating to financial services’, in the version applicable to the facts of the main proceedings, was worded as follows: ‘… (7) The consumer is required to pay compensation for the depreciation of the goods when: 1. the depreciation is due to handling of the goods that was not necessary to verify their nature, characteristics, and functioning, and that 2. the trader has informed the consumer of their right of withdrawal in accordance with Paragraph 246a(1), second subparagraph, first sentence, point 1, of the Einführungsgesetz zum Bürgerlichen Gesetzbuch [(Introductory Act to the Civil Code) of 21 September 1994 (BGBl. 1994 I, p. 2494, and corrigendum BGBl. 1997 I, p. 1061; “the EGBGB”)]. …’
14 Paragraph 357a of the BGB, entitled ‘Legal consequences of withdrawal from contracts relating to financial services’, in the version applicable to the facts of the main proceedings, provided: ‘(1) Services received must be returned within 30 days at the latest. … (3) In the event of withdrawal from consumer loan agreements, the borrower must pay the agreed interest for the period from the disbursement to the repayment of the loan. …’
15 Paragraph 358 of the BGB, entitled ‘Contract related to the contract from which the consumer has withdrawn’, in the version applicable to the facts of the main proceedings, was worded as follows: ‘(1) If the consumer has validly withdrawn his or her declaration of intent to conclude an agreement for the supply of goods or the provision of another service by a trader, he or she shall also cease to be bound by his or her declaration of intent to conclude a credit agreement linked to that agreement. (2) If the consumer has validly withdrawn his or her declaration of intent to conclude a consumer credit agreement on the basis of Paragraph 495(1) or of the first sentence of Paragraph 514(2), he or she shall also cease to be bound by his or her declaration of intent to conclude an agreement for the supply of goods or the provision of another service linked to that consumer credit agreement. (3) A contract for the supply of goods or the provision of other services and a credit agreement pursuant to subparagraph 1 or 2 shall be linked if the credit serves to finance the other agreement in whole or in part and if they both form an economic unit. An economic unit shall be deemed to exist, in particular, where the trader himself or herself finances the consumer’s counter-performance or, in the case of financing by a third party, where the creditor involves the trader in the preparation or conclusion of the credit agreement. (4) The restoration of the status quo ante with regard to the linked agreement shall be governed mutatis mutandis … by [Paragraphs 357 to 357b]. … The creditor shall assume in dealings with the consumer the rights and obligations of the trader arising from the linked agreement as regards the legal consequences of withdrawal or restitution if, at the time when the withdrawal takes effect, the amount of the loan has already been paid to the trader.’
16 Paragraph 492 of the BGB, entitled ‘Written form, content of the contract’, provides: ‘… (2) The contract must include the information required for all consumer loan agreements, in accordance with Paragraph 247(6) to (13) of the EGBGB. … (6) If the information referred to in subparagraph 2 is not included in the contract or is incomplete, it may be added on a durable medium after the contract has been effectively concluded or, in the cases referred to in the first sentence of Paragraph 494(2), once the contract has entered into force. …’
17 Paragraph 247 of the EGBGB, entitled ‘Information requirements for consumer loan agreements, paid financial assistance and credit intermediation agreements’, provides: ‘… § 3 Content of pre-contractual information in general consumer credit agreements (1) The information provided prior to the 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 a clear and understandable manner: 1. the information indicated in points 1 to 14 of Paragraph 3(1), and in Paragraph 3(4). …’
18 In accordance with their requests dated 1 March 2019 and 30 November 2017, KI and FA entered into credit agreements with Mercedes-Benz Bank and Volkswagen Bank, respectively, for the purchase of a motor vehicle for private use. The amounts of the loans granted were EUR 29500 for KI and EUR 35300 for FA.
19 When concluding the credit agreements, the car dealers from whom the vehicles were purchased acted as credit intermediaries for Mercedes-Benz Bank and Volkswagen Bank, with the result that the credit amounts were paid directly to those dealers.
20 None of the credit agreements mentioned, in the form of a percentage figure, the interest rate applicable for late payments at the time the agreement was concluded.
21 KI and FA made down payments and monthly instalments on the loan totalling EUR 8 924.48 and EUR 24800 respectively under their contracts.
22 By letters of 31 October 2019 and 20 July 2020, KI and FA indicated that they were exercising their right of withdrawal from the credit agreements. They consider that their withdrawals are valid on the grounds that the 14-day withdrawal period provided for under German law did not begin to run due to irregularities in the mandatory information contained in their contract.
23 Those consumers, each on their own behalf, brought proceedings before the Landgericht Ravensburg (Regional Court, Ravensburg, Germany), which is the referring court, against Mercedes-Benz Bank and Volkswagen Bank respectively.
24 KI requests, in essence, reimbursement of the monthly loan payments made up to the date of withdrawal and the deposit paid to the dealer, amounting to EUR 8 924.48, as well as a finding that Mercedes-Benz Bank failed to fulfil its obligation to take delivery of the vehicle. It also requests that it be recognised that it owes no compensation for the depreciation of the vehicle and that, due to its withdrawal, it is no longer liable for any sums under the credit agreement, whether in respect of the principal borrowed or of interest.
25 FA seeks, in essence, reimbursement of the monthly loan payments made up to the date of withdrawal and the deposit paid to the dealer, namely a total of EUR 24800, less compensation of EUR 24550 for depreciation of the vehicle plus interest. It also requests that it be noted that, as of the date of its withdrawal, it is no longer liable for any sums under the credit agreement, whether in respect of the principal borrowed or of interest, and that Volkswagen Bank has not fulfilled its obligation to take delivery of the vehicle.
26 Mercedes-Benz Bank contends, primarily, that KI’s action, arguing, in particular, that the right of withdrawal has expired and that that right has been exercised abusively, should be dismissed. In the alternative, on the assumption that KI has validly exercised its right of withdrawal and is therefore entitled to reimbursement of the sums paid, it requests that it be found that KI owes it compensation for the loss in value of the vehicle. In addition, the bank requests that KI be ordered to pay it compensation for use of 3.92% per annum on the outstanding balance of the loan for the period between the payment of the loan funds to the seller and the return of the vehicle.
27 Volkswagen Bank also concludes that FA’s action should be dismissed and argues in particular that the right of withdrawal has expired.
28 In those circumstances, the referring court questions, in the first place, whether, where the borrower exercises his or her right of withdrawal in respect of a credit agreement linked to a vehicle purchase agreement, the creditor may claim compensation for the loss in value of that vehicle and, if so, for what amount.
29 That court observes that, according to the case-law of the Bundesgerichtshof (Federal Court of Justice, Germany), after exercising his or her right of withdrawal, the borrower is required to pay compensation corresponding to the loss in value of the vehicle during the period in which he or she had possession of it, even where the consumer was not fully informed of his or her right of withdrawal. It adds that the Bundesgerichtshof (Federal Court of Justice) has also ruled that the amount of that compensation is calculated by deducting the purchase price paid by the dealer at the time of the vehicle’s return from the sale price charged by the dealer at the time of the consumer’s acquisition of the vehicle.
30 The referring court considers that that method of calculation, based on different market values resulting from transactions carried out on different markets, namely the market on which dealers sell and the market on which they buy, places on the consumer not only the compensation for depreciation resulting from the use of the vehicle, but also the costs of resale, a profit margin and value added tax. Those are factors that increase the price solely as a result of the exercise of the right of withdrawal, as those costs are unrelated to any use of the vehicle by the consumer. Furthermore, the amount of compensation could be high, even if the vehicle has never been registered or used before the right of withdrawal is exercised. This method would therefore allow the creditor to make a profit by reselling the vehicle at a price higher than the dealer’s purchase price.
31 Consequently, that court considers that that national case-law could undermine the effectiveness of the right of withdrawal provided for in Directive 2008/48 and the principle of prohibition of unjust enrichment.
32 In the second place, the referring court asks whether, by virtue of the first sentence of Article 14(3)(b) thereof, Directive 2008/48 has completely harmonised the obligation on the borrower to pay interest on the capital, including where the credit financed is linked to a contract for the purchase of goods.
33 That court notes that Directive 2008/48 does not specify either the effects of exercising the right of withdrawal in relation to the related credit agreement or the benefits that the parties to the financed agreement, in this case the buyer and the seller, must return. It is for the national legislature alone to specify the consequences of exercising the right of withdrawal in relation to such a credit agreement. It should therefore be accepted that Member States have a margin of discretion to decide, including by departing from the first sentence of Article 14(3)(b) of Directive 2008/48, on the arrangements for restoring the status quo ante in the case of linked contracts.
34 In the event that Directive 2008/48 did not achieve complete harmonisation for credit agreements linked to a contract for the supply of goods or the provision of services, that court wonders whether it is compatible with EU law, in particular with Article 14(1) of Directive 2008/48, that the borrower, after exercising his or her right of withdrawal from a consumer credit agreement linked to a vehicle purchase agreement, is required to pay the interest provided for in that first agreement for the period between the payment of the loan funds to the vehicle seller and the date of return of the vehicle to the creditor or seller. It points out that national case-law is divided on that issue.
35 Since, first, the consumer would not derive any enrichment from the use of the credit amount, as it was paid directly by the creditor to the seller as payment for the purchase price of the vehicle and, secondly, that consumer could not exercise his or her right of withdrawal without fear of suffering financial loss, the referring court considers that an obligation on that consumer to pay interest could be contrary to the general principles of EU law, in particular the requirement that the right of withdrawal be effective, as well as the principle of the prohibition of unjust enrichment.
36 In the third place, that court questions the validity of the withdrawals at issue in the main proceedings.
37 In that regard, it considers that it follows from the judgment of 9 September 2021, Volkswagen Bank and Others (C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:736), that the withdrawal period only begins to run if the interest rate for late payment has been stated as a specific percentage, and indicates that the Bundesgerichtshof (Federal Court of Justice) has complied with that judgment.
38 The referring court also considers that the solution adopted in that judgment was not called into question by the judgment of 21 December 2023, BMW Bank and Others (C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014). However, it notes that the Bundesgerichtshof (Federal Court of Justice) takes a different view, now considering that the absence of a specific percentage figure for the interest rate for late payment applicable at the time of conclusion of the credit agreement does not prevent the withdrawal period from starting to run. That interpretation led it to doubt the validity of the withdrawal in the main proceedings.
39 In the fourth and last place, the referring court questions whether the exercise of the right of withdrawal provided for in Article 14(1) of Directive 2008/48 can be classified as abusive.
40 That court notes that, according to the case-law of the Bundesgerichtshof (Federal Court of Justice), the exercise of the consumer’s right of withdrawal may be considered abusive where that consumer continues to use the vehicle until the national courts have ruled on the validity of the withdrawal and that consumer refuses to pay compensation for the loss in value of the vehicle resulting from its use.
41 According to that court, that national case-law appears to be inconsistent with the judgments of 9 September 2021, Volkswagen Bank and Others (C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:736), and of 21 December 2023, BMW Bank and Others (C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014), in which the Court ruled that the exercise by the consumer of his or her right of withdrawal in accordance with Article 14(1) of Directive 2008/48 cannot be considered abusive where the interest rate for late payment has not been specified as a specific percentage in the credit agreement.
42 It is in those circumstances that 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 it compatible with EU law, in particular Article 14(1) of Directive [2008/48], if, in the case of withdrawal from a consumer credit agreement linked to a vehicle sales agreement concluded with a brick-and-mortar trader, the amount of compensation for the diminished value to be paid by the consumer to the creditor on return of the vehicle financed is calculated by deducting from the trader’s sales price at the time of purchase of the vehicle by the consumer the trader’s purchase price at the time of the return of the vehicle? (2) Is the first sentence of Article 14(3)(b) of Directive [2008/48] fully harmonised, and therefore binding on the Member States, as regards consumer credit agreements which are linked to an agreement for the sale of a vehicle? If [Q]uestion 2 is answered in the negative: (3) Is it compatible with EU law, in particular Article 14(1) of Directive [2008/48], if, following withdrawal from a consumer credit agreement linked to a vehicle sales agreement, the borrower is obliged to pay interest at the contractually agreed borrowing rate to the creditor (or to the seller) for the period between the payment of the loan to the seller of the vehicle being financed and the time when the vehicle is returned? (4) (a) Must Article 10(2)(l) of Directive [2008/48], read in conjunction with [point (b) of the second subparagraph of Article 14(1) thereof], be interpreted as meaning that the period of withdrawal does not begin if the rate of late-payment interest applicable at the time of conclusion of the credit agreement is not stated, in the form of a specific percentage, in that credit agreement? If not: (b) Is the absence of such an indication capable of affecting an average consumer’s ability to assess the extent of his or her rights and obligations under that directive or his or her decision to conclude the contract and, if so, capable of depriving him or her of the possibility of exercising his or her rights in essence under the same conditions as would have prevailed if that information had been provided in a complete and correct manner? (5) (a) Is the creditor’s plea that, as a result of the consumer’s conduct between the conclusion of the agreement and the exercise of the right of withdrawal or after its exercise, the consumer exercised that right in an abusive manner precluded when the credit agreement does not state, in the form of a specific percentage, the rate of late-payment interest applicable at the time of conclusion of the agreement? If not: (b) Can the plea of abuse of rights rely on the following factors in particular? - The consumer continues to use the financed vehicle pending judicial clarification as to the validity of the withdrawal; - The consumer refuses to pay compensation for the use of the vehicle.’
43 By order of the President of the Court of 18 April 2023, the proceedings in the present case were stayed pending the decision bringing to an end the proceedings in the joined cases BMW Bank and Others (C‑38/21, C‑47/21 and C‑232/21).
44 In accordance with the decision of the President of the Court of 17 December 2023, the Registry notified the referring court of the judgment of 21 December 2023, BMW Bank and Others (C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014), inviting it to indicate whether, in the light of that judgment, it wished to maintain its request for a preliminary ruling.
45 On 10 April 2024, that court replied that it maintained its request for a preliminary ruling and that it considered it necessary to add further questions.
46 Following a supplement to the request for a preliminary ruling made on the same day, in which that court asked two additional questions, namely the fourth and fifth questions, the proceedings were resumed by order of the President of the Court of 16 April 2024.
47 In the first place, Volkswagen Bank argues that the first question is inadmissible on the grounds that EU law is not applicable to the circumstances of the main proceedings. It claims that the provisions of Directive 2008/48 do not govern the consequences of exercising the right of withdrawal in relation to a credit agreement linked to a contract for the supply of goods or the provision of services. Those consequences, in particular as regards the obligation on the purchaser of goods financed in that way to pay compensation for the depreciation of those goods, and the method of calculating that compensation, are governed solely by national law.
48 It should be noted that, in accordance with settled case-law, in the context of cooperation between the Court and national courts established in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see judgments of 29 November 1978, Redmond, 83/78, EU:C:1978:214, paragraph 25, and of 11 January 2024, Nárokuj, C‑755/22, EU:C:2024:10, paragraph 17 and the case-law cited).
49 It follows that questions relating to EU law are presumed to be relevant. 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 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 judgments of 7 September 1999, Beck and Bergdorf, C‑355/97, EU:C:1999:391, paragraph 22, and of 11 January 2024, Nárokuj, C‑755/22, EU:C:2024:10, paragraph 18 and the case-law cited).
50 However, that is not the case in the present case.
51 It is apparent from the request for a preliminary ruling that the disputes in the main proceedings, the existence of which is not disputed, concern, first, the determination of the legal consequences of the exercise of the right of withdrawal by the consumers concerned in the context of credit agreements linked to a vehicle purchase agreement. Secondly, those disputes concern the conditions for triggering the withdrawal period, in view of the absence of any mention, in the form of a specific percentage, of the interest rate applicable to late payments in the credit agreement, and the possible abusive exercise of the right of withdrawal.
52 In that context, by its first question, the referring court asks, in essence, whether the method of calculating compensation for the loss in value of goods payable by the consumer when exercising that right of withdrawal, as provided for in German case-law, is compatible with Article 14(1) of Directive 2008/48. That provision, the interpretation of which is the subject of the first question, governs that right granted to consumers.
53 Thus, it is not apparent that the interpretation of Directive 2008/48 sought by that question is unrelated to the reality or subject matter of the disputes in the main proceedings or that the issue raised is hypothetical. Consequently, in the present case, the objection alleging the inapplicability of that provision to the case in the main action does not relate to the admissibility of the request for a preliminary ruling, but concerns the substance of the questions (see, to that effect, judgment of 24 February 2022, TGSS (Domestic worker unemployment), C‑389/20, EU:C:2022:120, paragraph 31 and the case-law cited).
54 Consequently, the first question is admissible.
55 In the second place, Mercedes-Benz Bank disputes the admissibility of the fourth and fifth questions. It argues, first, that the judgment of 21 December 2023, BMW Bank and Others (C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014), has already provided an answer to those questions and, secondly, that the referring court is seeking to call into question the case-law of the Bundesgerichtshof (Federal Court of Justice) based on the provisions of Directive 2008/48, as interpreted by that judgment. In that regard, Mercedes-Benz Bank submits that the referring court is thus seeking to challenge the Court’s assessments in that judgment, relying on its own interpretation of those provisions.
56 In the present case, by its fourth and fifth questions, the referring court asks the Court to interpret Article 10(2)(l) of Directive 2008/48 concerning the requirement to specify the interest rate applicable to late payments in the credit agreement and Article 14(1) of that directive concerning the determination of the starting point of the 14-day withdrawal period. Those two questions concern, respectively, the conditions for triggering the withdrawal period and the possibility of classifying the exercise of the right of withdrawal as unfair.
57 It should be noted, first of all, that even when there is case-law of the Court resolving the point of law at issue, national courts and tribunals retain the broadest power to bring a matter before the Court if they consider it appropriate to do so, and the fact that the provisions whose interpretation is sought have already been interpreted by the Court does not deprive the Court of jurisdiction to give a further ruling (judgment of 6 October 2021, Consorzio Italian Management and Catania Multiservizi, C‑561/19, EU:C:2021:799, paragraph 37 and the case-law cited).
58 Next, the presumption of relevance referred to in paragraph 49 of the present judgment cannot be rebutted by the mere fact that one of the parties to the main proceedings disputes the interpretation of the provisions of EU law adopted by the referring court, even where those provisions have already been interpreted by the Court (see, by analogy, judgment of 20 September 2018, OTP Bank and OTP Faktoring, C‑51/17, EU:C:2018:750, paragraph 41).
59 Finally, a court which is not ruling at last instance must be free, in particular if it considers that a higher court’s legal ruling could lead it to deliver a judgment contrary to EU law, to refer to the Court of Justice questions before it (see judgments of 16 January 1974, Rheinmühlen-Düsseldorf, 166/73, EU:C:1974:3, paragraph 4, and of 18 May 2021, Asociaţia Forumul Judecătorilor din România and Others, C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393, paragraph 133 and the case-law cited).
60 Consequently, the fourth and fifth questions are also admissible.
61 The fourth and fifth questions should be examined first, as they relate, respectively, to the starting point of the withdrawal period in the case of credit agreements linked to a vehicle purchase agreement and to the possibility of classifying the exercise of the right of withdrawal as unfair. The first to third questions, which essentially concern the consequences of withdrawal, will be examined next.
62 By its fourth question, the referring court asks, in essence, whether Article 10(2)(l) and the second subparagraph of Article 14(1)(b) of Directive 2008/48 must be interpreted as meaning that the withdrawal period provided for in Article 14(1) does not begin to run until the credit agreement specifies, in the form of a specific percentage, the interest rate applicable in the event of late payment at the time of conclusion of the agreement. If not, that court seeks to ascertain whether the absence of that information is likely to affect the consumer’s ability to assess the extent of his or her rights and obligations under that directive or his or her decision to conclude the agreement and, where applicable, of exercising his or her rights, in essence, under the same conditions as those that would have prevailed if that information had been provided in a complete and accurate manner.
63 It follows from the second subparagraph of Article 14(1)(b) of Directive 2008/48 that the 14-day withdrawal period begins to run only on the day on which, in particular, the information provided for in Article 10 of that directive has been received by the consumer, if that day is later than the day on which the credit agreement was concluded.
64 In accordance with Article 10(2)(l) of Directive 2008/48, a credit agreement must state, in a clear and concise manner, 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.
65 It should be noted that the system of protection introduced by Directive 2008/48 is based on the idea that the consumer is in a weak position vis-à-vis the trader, as regards both his or her bargaining power and his or her level of knowledge, which leads to the consumer agreeing to terms drawn up in advance by the trader without being able to influence the content of those terms (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 259 and the case-law cited).
66 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 or she wishes to be bound by the conditions drafted in advance by the trader (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 260 and the case-law cited).
67 In that regard, the obligation to provide information, set out in Article 10(2) of Directive 2008/48, contributes to attaining the objective pursued by that directive, which, as can be seen from recitals 7 and 9 of that directive, 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 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 262 and the case-law cited).
68 It follows from Article 10(2) of Directive 2008/48, read in the light of recital 31 of that directive, that 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. More specifically, knowledge and good understanding, on the part of the consumer, of the information that must be mandatorily included in the credit agreement are necessary for the proper performance of the agreement and, in particular, for the exercise of the consumer’s rights (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 263 and the case-law cited).
69 Thus, where information provided by the creditor to the consumer under Article 10(2) of Directive 2008/48 proves to be incomplete or incorrect, the withdrawal period starts to run only if the incomplete or incorrect nature of that information is not capable of affecting the consumer’s ability to assess the extent of his or her rights and obligations under that directive or his or her decision to conclude the contract and, where relevant, is not capable of depriving him or her of the possibility of exercising his or her rights, in essence, under the same conditions as would have prevailed if that information had been provided in a complete and correct manner (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 265 and the case-law cited).
70 However, a situation characterised by the provision of incomplete or incorrect information must be distinguished from a situation in which the required information is lacking (see, to that effect, judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 264).
71 In the present case, it is apparent from the request for a preliminary ruling that none of the credit agreements at issue in the main proceedings mentioned, in the form of a specific percentage, the interest rate for late payment applicable at the time those agreements were concluded. Nor is it apparent from the file before the Court that that information was communicated to the consumers concerned after those agreements were concluded.
72 In that regard, it is important to note that the obligation to indicate, in the credit agreement, the specific interest rate for late payment, expressed as a percentage, in accordance with Article 10(2)(l) of Directive 2008/48, enables the consumer to be aware of the consequences of any late payment. The Court therefore ruled that a credit agreement must specify, as a specific percentage, the interest rate applicable in the event of late payment at the time the agreement is concluded and must describe in concrete terms the mechanism for adjusting that rate (judgment of 9 September 2021, Volkswagen Bank and Others, C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:736, paragraphs 92 and 95).
73 The mention in the credit agreement of the interest rate applicable in the event of late payment, expressed as a specific percentage, appears to be essential in order for the consumer to be able to assess the extent of his or her contractual commitment, in particular with regard to the financial consequences that may result from a breach of his or her payment obligation or a delay in fulfilling it. That information is therefore likely to influence not only the consumer’s decision to enter into the agreement, but also their ability to organise the repayment of the loan.
74 It follows that, where the credit agreement does not specify, in the form of a specific percentage, the interest rate for late payment applicable at the time of conclusion of the agreement, the withdrawal period provided for in Article 14(1) of Directive 2008/48 does not begin to run until that information has been provided to the consumer (see, to that effect, judgment of 9 September 2021, Volkswagen Bank and Others, C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:736, paragraph 117).
75 In view of the foregoing reasons, the answer to the fourth question is that Article 10(2)(l) and the second subparagraph of Article 14(1)(b) of Directive 2008/48 must be interpreted as meaning that the withdrawal period provided for in Article 14(1) does not begin to run until the credit agreement does not specify, in the form of a specific percentage, the interest rate applicable in the event of late payment at the time of conclusion of the agreement, and that is the case until such time as that information has been duly communicated to the consumer.
76 By its fifth question, the referring court asks, in essence, whether Article 14(1) of Directive 2008/48 must be interpreted as precluding the creditor from validly relying on the consumer’s improper exercise of the right of withdrawal provided for in Article 14(1) on the basis of the latter’s conduct between the conclusion of the contract and the exercise of the right of withdrawal, or even after that exercise, where the credit agreement, in breach of Article 10(2)(l) of that directive, does not specify, in the form of a specific percentage, the interest rate applicable in the event of late payment at the time of the conclusion of that agreement. If the answer is in the negative, that court seeks to ascertain whether the classification as an abuse of rights can be based on the circumstances that the consumer continues to use the vehicle until the national courts have ruled on the validity of the withdrawal and that the consumer refuses to pay compensation for the loss of value of that vehicle.
77 In that regard, it should be noted, in the first place, that Directive 2008/48 does not contain provisions governing the abuse by consumers of the rights conferred on his or her by that directive (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 280 and the case-law cited).
78 Nevertheless, in accordance with settled case-law, there is, in EU law, a general legal principle that EU law cannot be relied on for abusive or fraudulent ends (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 281 and the case-law cited).
79 That general principle of law must be complied with by individuals. Indeed, the application of EU legislation cannot be extended to cover transactions carried out for the purpose of fraudulently or wrongfully obtaining advantages provided for by EU law (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 282 and the case-law cited).
80 It thus follows from that principle that a Member State must refuse, even in the absence of provisions of national law providing for such a refusal, to grant the benefit of the provisions of EU law where they are relied upon by a person not with a view to achieving the objectives of those provisions, but with the aim of benefiting from an advantage granted to that person by EU law when the objective conditions required for obtaining the advantage sought, prescribed by EU law, are met only formally (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 283 and the case-law cited).
81 In the second place, it is clear from settled case-law that 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 laws 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 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 285 and the case-law cited).
82 It is ultimately for the referring court to verify the existence of an abusive practice in the disputes pending before it, taking into account all the facts and circumstances of the case, including those subsequent to the transaction which is alleged to be abusive (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 286 and the case-law cited). However, the Court may provide guidance to the national court in its assessment.
83 In that regard, it is clear from the case-law that the creditor cannot validly consider that, because of the considerable time that has elapsed between the conclusion of the contract and the exercise of the right of withdrawal provided for in Article 14(1) of Directive 2008/48, the consumer has abused that right, where mandatory information listed in Article 10(2) of that directive 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 (judgment of 9 September 2021, Volkswagen Bank and Others, C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:736, paragraph 127).
84 Consequently, a creditor cannot claim that the exercise of the right of withdrawal is unfair where the credit agreement does not specify, in the form of a specific percentage, the interest rate applicable to late payments at the time of its conclusion, which is one of the mandatory items of information. As is apparent from paragraph 75 of the present judgment, the withdrawal period has not, in such a case, begun to run.
85 In view of the foregoing reasons, the answer to the first part of the fifth question is that Article 14(1) of Directive 2008/48 must be interpreted as precluding the creditor from validly relying on the consumer’s improper exercise of the right of withdrawal provided for in Article 14(1) on the basis of the consumer’s conduct between the conclusion of the contract and the exercise of the right of withdrawal, or even after that exercise, where the reference, in the form of a specific percentage, of the interest rate applicable in the event of late payment at the time of conclusion of that contract, as required by Article 10(2)(l) of that directive, was not included in the credit agreement and was not duly communicated at a later date.
86 By its first question, the referring court asks, in essence, whether Article 14(1) of Directive 2008/48 must be interpreted as precluding national case-law according to which, where a consumer exercises his or her right of withdrawal from a credit agreement linked to a vehicle purchase agreement, the amount of compensation for loss of value owed by that consumer to the creditor when the vehicle is returned is calculated by deducting from the sale price charged by the dealer at the time of the vehicle’s purchase by that consumer the purchase price paid by the dealer at the time of the return of that vehicle, provided that that method of calculation includes factors unrelated to the consumer’s use of that vehicle.
87 Under Article 3(n) of Directive 2008/48, a ‘linked credit agreement’ is defined as a credit agreement under which the credit in question serves exclusively to finance an agreement relating, in particular, to the supply of goods, provided that those two contracts constitute, from an objective point of view, a commercial unit.
88 In the present case, it is apparent from the request for a preliminary ruling that the credit agreements at issue in the main proceedings were used for the purchase of motor vehicles for private use. It is also apparent that the credit amounts were paid directly to the car dealers from whom the vehicles were purchased. Consequently, those agreements fall within the concept of ‘linked credit agreement’ within the meaning of Article 3(n) of Directive 2008/48.
89 Article 14(1) of Directive 2008/48 provides that the consumer has a period of 14 calendar days in which to withdraw from the credit agreement without giving any reason. Directive 2008/48 does not, however contain any provisions governing the consequences of a withdrawal, by the consumer, from a credit agreement linked to the contract for the supply of goods. Recital 35 of that directive states, moreover, that that directive should be without prejudice to any regulation by Member States of questions concerning the return of the goods financed by the credit or any related questions (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 302).
90 In the absence of specific EU rules governing the matter, the rules implementing the consumer protection provided for by that directive are a matter for the domestic legal order of the Member States in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence) nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness) (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 303 and the case-law cited).
91 As regards the principle of effectiveness, which is the only relevant principle in the present case, it follows from the case-law that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies. In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 304 and the case-law cited).
92 Thus, national provisions and, where applicable, national case-law implementing them, governing the consequences of the consumer’s exercise of his or her right of withdrawal in respect of a credit agreement linked to a contract for the supply of goods, cannot undermine the effectiveness and efficiency of the right of withdrawal provided for in Article 14(1) of Directive 2008/48.
93 In the present case, it is apparent from the request for a preliminary ruling, in the first place, that under Paragraph 357(7) of the BGB, the consumer is required to pay compensation for any loss in value of the goods where that loss in value is attributable to handling of the goods which was not necessary for the purpose of establishing their nature, characteristics and functioning, provided that the trader has informed the consumer of his or her right of withdrawal. In the second place, according to the case-law of the Bundesgerichtshof (Federal Court of Justice), the amount of that compensation is, in circumstances such as those at issue in the main proceedings, calculated by deducting the purchase price paid by the dealer at the time of the vehicle’s return from the sale price charged by the dealer at the time of the consumer’s purchase of the vehicle.
94 According to the referring court, that method of calculation is based on different market values resulting from transactions carried out on different markets, namely, first, the market on which dealers sell and, secondly, the market on which they buy. According to the same information, that method requires the consumer to bear not only the compensation for depreciation resulting from the use of the vehicle, but also the resale costs, a profit margin and value added tax. Those are costs inherent in the exercise of the right of withdrawal, which are independent of any use of the vehicle by the consumer. That would amount to requiring the consumer to pay compensation simply for exercising the right of withdrawal. As a result, the amount of such compensation may be high, even if the vehicle has never been registered or used before the right of withdrawal is exercised.
95 In that regard, it should be noted that the Court has already ruled, with regard to the right of withdrawal provided for in Directive 97/7 in the case of distance contracts, that the power conferred on Member States to determine the conditions and arrangements following exercise of that right must be exercised in accordance with the purpose of that directive and must not undermine the effectiveness and efficiency of that right. That would be the case if the amount of compensation for loss of value of goods, payable by the consumer to the creditor when the goods are returned, appeared disproportionate to the purchase price of those goods (see, to that effect, judgment of 3 September 2009, Messner, C‑489/07, EU:C:2009:502, paragraph 27).
96 That interpretation also applies to Directive 2008/48. Like Directive 97/7, the 14th recital of which stated that it was for the Member States to determine the conditions and arrangements following exercise of the right of withdrawal, Directive 2008/48 grants Member States a margin of discretion since, as already noted in paragraph 89 of the present judgment, it leaves it to them to regulate matters relating to the return of the goods financed by the credit or any other related matters. Furthermore, as is apparent from paragraph 92 of the present judgment, the principle of effectiveness requires that national provisions governing the consequences of the exercise of the right of withdrawal do not undermine the effectiveness and efficiency of that right to such an extent that it becomes impossible or excessively difficult in practice to exercise that right.
97 The assessment of the proportionality of the compensation that may be claimed from the consumer following the exercise of their right of withdrawal must be carried out on the basis of a detailed analysis, taking into account the specific terms and conditions of use of the goods concerned and the condition of the vehicle at the time of its return, in particular with regard to any mechanical damage or aesthetic deterioration resulting from such use. The mere fact that the compensation thus determined may be high in relation to the purchase price of the vehicle by the consumer does not, in itself, establish that that compensation is disproportionate and that the method of calculating it makes it impossible or excessively difficult in practice to exercise the right of withdrawal, provided that the amount of that compensation objectively reflects the actual depreciation of the vehicle resulting from its use by the consumer and its condition at the time of its return.
98 By contrast, subject to the verifications to be carried out by the referring court, it must be considered that a method of calculation based solely on the difference in price between the purchase and resale of the vehicle, which includes factors unrelated to the use of that vehicle, such as commercial margins and resale costs - determined unilaterally by the car dealer - as well as value added tax, does not allow for the assessment of the depreciation of that vehicle resulting from its use by the consumer. Furthermore, as the referring court points out, those factors are taken into account even where the vehicle has not been registered or used before the right of withdrawal is exercised. That method therefore appears to impose on the consumer a burden resulting exclusively from the exercise of his or her right of withdrawal.
99 In those circumstances, a method of calculating compensation for the loss of value of an item such as that at issue in the main proceedings is liable to result in compensation that is disproportionate to the purchase price of that item and to make the exercise of the right of withdrawal impossible or excessively difficult in practice.
100 In view of the foregoing reasons, the answer to the first question is that Article 14(1) of Directive 2008/48, read in the light of the principle of effectiveness, must be interpreted as precluding national case-law which, where a consumer exercises his or her right of withdrawal from a credit agreement linked to a vehicle purchase agreement, the amount of compensation for loss of value owed by that consumer to the creditor when the vehicle is returned is calculated by deducting from the sale price charged by the dealer at the time of the vehicle’s purchase by that consumer the purchase price paid by the dealer at the time of the return of that vehicle, provided that that method of calculation includes factors unrelated to the consumer’s use of that vehicle.
101 By its second question, the referring court asks, in essence, whether, in the light of the first sentence of Article 14(3)(b) of Directive 2008/48, that directive must be interpreted as meaning that it harmonises completely the rules relating to the consequences of the consumer exercising his or her right of withdrawal from a credit agreement linked to a vehicle purchase agreement.
102 In that regard, it should be noted, in the first place, that it follows from Article 22(1) of Directive 2008/48, interpreted in the light of recitals 9 and 10 of that directive, that, with regard to credit agreements falling within its scope, that directive provides for complete harmonisation and, as is apparent from the title of Article 22, is mandatory in nature. It follows that, in the matters specifically covered by that harmonisation, the Member States are not authorised to maintain or introduce national provisions other than those laid down by that directive (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 295 and the case-law cited).
103 Article 2(1) of Directive 2008/48 provides that it applies to credit agreements and, as is apparent from Article 3(n) of that directive, the wording of which is set out in paragraph 87 of the present judgment, ‘linked credit agreements’ fall within the category of ‘credit agreements’. It follows that linked credit agreements, within the meaning of Article 3(n), are not excluded from the scope of that directive solely on the basis of their subject matter.
104 However, Article 14(3)(b) of Directive 2008/48 merely provides that, if the consumer exercises his or her right of withdrawal, he or she must repay the creditor the capital borrowed, together with the interest accrued on that capital from the date on which the credit was drawn down until the date on which the capital is repaid, without undue delay and no later than 30 calendar days after sending the notice of withdrawal to the creditor. Interest is calculated on the basis of the agreed borrowing rate.
105 In the second place, it should be noted, first of all, as stated in paragraph 89 of the present judgment, that Directive 2008/48 does not contain any provisions governing the consequences of a withdrawal, by the consumer, from a credit agreement linked to the contract for the supply of goods. Recital 35 of that directive states, moreover, that that directive should be without prejudice to any regulation by Member States of questions concerning the return of the goods financed by the credit or any related questions (judgment of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 302).
106 Next, as the Advocate General noted in points 34 and 37 of his Opinion, the first sentence of Article 14(3)(b) of Directive 2008/48 does not specify the fate of the financed asset or the possible interactions between the linked credit agreement and the vehicle purchase agreement. The only provision of that directive which refers to the consequences of exercising a right of withdrawal in the case of a linked credit agreement, namely Article 15(1), concerns the situation in which a consumer exercises such a right, provided for by EU law, in relation to a contract for the supply of goods or the provision of a service. By contrast, no provision of Directive 2008/48 deals with the situation in which the right of withdrawal exercised by the consumer concerns the linked credit agreement itself.
107 Finally, as already noted in paragraph 90 of the present judgment, in the absence of specific EU rules governing the matter, the rules implementing the consumer protection provided for under Directive 2008/48 are a matter for the domestic legal order of the Member States in accordance with the principle of procedural autonomy of the Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence) nor must they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness).
108 It follows that the EU legislature intended to ensure that the exercise of the right of withdrawal is effective, while granting Member States a margin of discretion as regards the implementation of that withdrawal in the specific context of linked credit agreements. Therefore, Directive 2008/48 does not completely harmonise all the legal consequences that may arise from the withdrawal from such a contract.
109 It is therefore for the Member States, in accordance with the principles of equivalence and effectiveness, to specify the effects of the exercise of the right of withdrawal in the context of a credit agreement linked to a contract for the supply of goods, including, where applicable, the obligation to pay the interest accrued on the capital borrowed, as well as the terms and conditions thereof.
110 In view of the foregoing reasons, the answer to the second question is that Directive 2008/48 must be interpreted as not harmonising completely the rules relating to the consequences of the consumer’s exercise of his or her right of withdrawal from a credit agreement linked to a vehicle purchase agreement.
111 By its third question, the referring court asks, in essence, whether Article 14(1) of Directive 2008/48 must be interpreted as precluding national legislation under which a consumer who, after withdrawing from a consumer credit agreement linked to a vehicle purchase agreement, is required to pay the interest provided for in that first agreement for the period between the payment of the loan funds to the seller of the financed vehicle and the date of return of the vehicle to the creditor or seller.
112 Article 14(1) of Directive 2008/48 provides for a right of withdrawal for the consumer without the latter having to justify his or her decision. Furthermore, it follows from the first sentence of Article 14(3)(b) of that directive that, if the consumer exercises his or her right of withdrawal, he or she is required to repay the capital and the interest charged at the agreed rate for the period between the provision of the funds and their full repayment.
113 It follows from the answer to the second question that the first sentence of Article 14(3)(b) of Directive 2008/48 does not bring about complete harmonisation of the rules relating to the consequences of the consumer exercising his or her right of withdrawal from a credit agreement linked to a contract for the supply of goods, such as the purchase of a vehicle.
114 However, as is apparent from recital 8 of Directive 2008/48, that provision aims to strike a balance between consumer protection and the free movement of credit offers. Therefore, it must be considered that EU law does not preclude national legislation from providing that consumers who withdraw from a credit agreement linked to a vehicle purchase agreement are required to pay interest for the period from the actual provision of the funds until the return of the goods.
115 That assessment is corroborated, first, by the fact that the creditor temporarily relinquished the amount of the loan paid to the seller of the vehicle for the benefit of the consumer, which represents a tie-up of funds and a financial risk for the creditor. Secondly, the interest accrued on the borrowed capital does not represent a penalty, but rather the consideration for access to credit, which is, in principle, a paid transaction, regardless of whether the right of withdrawal is exercised.
116 Furthermore, as the Advocate General observed, in essence, in point 49 of his Opinion, the obligation that may be imposed on the consumer to pay interest calculated on the basis of the actual period during which the funds were made available serves to maintain the contractual balance. That obligation prevents one party, by exercising its right of withdrawal, from obtaining an undue advantage to the detriment of the other party and ensures a fair distribution of the costs and benefits arising from the performance, even if only partial and temporary, of the credit agreement.
117 It is nevertheless important to note that, as pointed out in paragraphs 90 and 91 of the present judgment, in the absence of specific EU rules governing the matter, the rules implementing the consumer protection provided for by Directive 2008/48 are a matter for the domestic legal order of the Member States and must comply with the principles of equivalence and effectiveness.
118 Furthermore, the Court’s answers to the first question and to the present question are such as to enlighten the referring court as to its questions concerning the existence of possible unjust enrichment, whether in favour of the consumer or the creditor.
119 In view of the foregoing reasons, the answer to the third question is that Article 14(1) of Directive 2008/48 must be interpreted as not precluding national legislation under which a consumer who, after withdrawing from a consumer credit agreement linked to a vehicle purchase agreement, is required to pay the interest provided for in that first agreement for the period between the payment of the loan funds to the seller of the financed vehicle and the date of return of the vehicle to the creditor or seller.
120 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.