ANALYSIS OF DIRECTIVES ON CONSUMER PROTECTION – EU FUNDED

Credit agreements for consumers (Directive 2008/48/ EC)

1. PURPOSE OF THE DIRECTIVE

Directive 2008/48/ΕΚ of the European Parliament and of the Council of 23rd April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC The Directive») aims at  harmonising certain aspects of the laws, regulations and administrative provisions of the Member States concerning agreements covering credit for consumers. A credit agreement is an agreement whereby a creditor grants or promises to grant to a consumer credit in the form of a deferred payment, loan or other similar financial accommodation.

HARMONISATION LEVEL: According to article 22, the Directive is a maximum harmonisation directive. However, based on paragraph 10 of the preamble of the Directive, Member States (“MSs”) may apply provisions of this Directive to areas not covered by its scope. Therefore, based on case C-602/10, a national measure is permissible irrespective whether it includes in its substantive scope consumer credit contracts whose object is the granting of consumer credit secured by immovable property[1] (see below Article 2(2)(a)).

SCOPE OF APPLICATION: The Directive applies to credit contracts with the exception of contracts concluded for the continuous provision of services or for the supply of goods of the same type, according to which the consumer pays in installments the price for the said services or goods during their provision (article 3). Also, based on article 2(2), it does not apply in the following cases:

«(a) credit agreements which are secured either by a mortgage or by another comparable security commonly used in a Member State on immovable property or secured by a right related to immovable property;

 

(b) credit agreements the purpose of which is to acquire or retain property rights in land or in an existing or projected building;

 

(c) credit agreements involving a total amount of credit less than EUR 200 or more than EUR 75 000;

 

(d) hiring or leasing agreements where an obligation to purchase the object of the agreement is not laid down either by the agreement itself or by any separate agreement; such an obligation shall be deemed to exist if it is so decided unilaterally by the creditor;

 

(e) credit agreements in the form of an overdraft facility and where the credit has to be repaid within one month;

 

(f) credit agreements where the credit is granted free of interest and without any other charges and credit agreements under the terms of which the credit has to be repaid within three months and only insignificant charges are payable;

 

(g) credit agreements where the credit is granted by an employer to his employees as a secondary activity free of interest or at annual percentage rates of charge lower than those prevailing on the market and which are not offered to the public generally;

 

(h) credit agreements which are concluded with investment firms as defined in Article 4(1) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (9) or with credit institutions as defined in Article 4 of Directive 2006/48/EC for the purposes of allowing an investor to carry out a transaction relating to one or more of the instruments listed in Section C of Annex I to Directive 2004/39/EC, where the investment firm or credit institution granting the credit is involved in such transaction;

 

(i) credit agreements which are the outcome of a settlement reached in court or before another statutory authority;

 

(j) credit agreements which relate to the deferred payment, free of charge, of an existing debt;

 

It is important to mention that according to the decision C-127/15, where a debt collection agency intervenes to collect the existing debt, and the agency requires the consumer to repay the total amount of the specific credit and to pay interest or costs that are not was foreseen in the original agreement on the basis of which the credit in question was granted, does not fall within the exemption of Article 2(2)(j) of the Directive – i.e. it is covered by the Directive.[2]

(k) credit agreements upon the conclusion of which the consumer is requested to deposit an item as security in the creditor’s safe-keeping and where the liability of the consumer is strictly limited to that pledged item;

 

(l) credit agreements which relate to loans granted to a restricted public under a statutory provision with a general interest purpose, and at lower interest rates than those prevailing on the market or free of interest or on other terms which are more favourable to the consumer than those prevailing on the market and at interest rates not higher than those prevailing on the market.»

 

There are also specific credit agreements where specific provisions of the Directive apply. These specific credit agreements are as follows:

  • Credit agreements in the form of overdraft facility. Such a credit agreement is an explicit credit agreement whereby a creditor provides a consumer with funds in excess of the current balance of the consumer’s current account.[3]
  • Credit agreements in the form of overruning. Such a credit agreement is where there is a tacit acceptance of overdraft whereby the creditor makes available to a consumer funds in excess of the current balance of the consumer’s current account or the agreed overdraft facility.[4]

The MSs have the right to exclude or limit the validity of the Directive to specific credit agreements which are concluded by an organization which is established for the mutual benefit of its members, does not generate profits for persons other than its members, fulfils a social purpose by virtue of internal legislation, receives and manages the savings of its members and provides them with credit and provides credit based on a total annual effective interest rate that is lower than those prevailing in the market or subject to a ceiling determined by national law and whose members can only be the persons residing or working in a particular area or the employees and retired former employees of a particular employer, or persons who meet other criteria defined by national law as a basis for the existence of a common link between the members.

 

2. SUBSTANTIAL PROVISIONS

2.1.   INFORMATION/LIABILITIES PRELIMINARY TO THE CONCLUSION OF THE CREDIT AGREEMENT

2.1.1.                INFORMATION IN ADVERTISING

Based on Article 4, any advertisement concerning credit agreements which indicates an interest rate or any figures relating to the cost of the credit to the consumer shall include standard information. The information in question is as follows:

«(a) the borrowing rate, fixed or variable or both, together with particulars of any charges included in the total cost of the credit to the consumer;

 

(b) the total amount of credit;

 

(c)    the annual percentage rate of charge; in the case of a credit agreement of the kind referred to in Article 2(3), Member States may decide that the annual percentage rate of charge need not be provided;

 

(d) if applicable, the duration of the credit agreement;

 

(e)  in the case of a credit in the form of deferred payment for a specific good or service, the cash price and the amount of any advance payment; and

 

(f)  if applicable, the total amount payable by the consumer and the amount of the instalments»

 

TOTAL AMOUNT OF CREDIT: Based on the Directive (article 3(l)) the total amount of credit  means the ceiling or the total sums made available under a credit agreement. According to case C-377/14, the total amount of credit may not include any of the amounts intended to meet the commitments entered into under the relevant credit agreement, such as administrative costs, interest, commissions, and any other type of fee payable by the consumer. The irregular inclusion, in the total amount of the credit, of amounts that are incidental to the total cost of the credit for the consumer will necessarily result in the determination of the APR at a lower level, given that its calculation depends on the total amount of the credit. Therefore, the total amount of credit and the amount that the consumer actually withdraws constitute the amounts made available to the consumer, with the result that the amounts used by the creditor to cover the costs associated with the relevant credit are excluded and which in fact are never made available to that consumer. [5]

EXCEPTION: In cases where the national legislation requires that the advertisement mentions the APR, then it is not necessary to provide any other information.

However, where there is a mandatory additional service related to the credit agreement (i.e. insurance) the cost of which cannot be determined in advance, then the fact that the additional service is mandatory should be stated.

2.1.2.                PRE-CONTRACTUAL INFORMATION

Article 5 refers to the obligation of the creditor/credit intermediary to provide the consumer in good time and before he is bound by any credit agreement with the standardized European Consumer Credit Information. This information is referred to in Annex II and includes information related to the identity and contact details of the creditor/credit broker, key features of the credit product, the cost of the credit, other important legal aspects and finally, additional information in the case of marketing financial services from distance. Additional detailed reference to the said information is made in article 5(1) of the Directive.

In the case of voice telephony communications, the description of the main characteristics of the financial service includes part of the information referred to in Article 5(1).

With regard to contracts concluded at the consumer’s request using a means of distance communication, which does not allow the provision of the information provided for in Article 5(1), (such as voice telephony), the creditor provides the consumer the complete pre-contractual information based on the form for the “standardized European Consumer Credit Information” immediately after the conclusion of the credit agreement.

The consumer should be given a free copy of the draft credit agreement whenever he requests it.

Based on Article 5(5)  in the case of a credit agreement under which payments made by the consumer do not give rise to an immediate corresponding amortisation of the total amount of credit, but are used to constitute capital during periods and under conditions laid down in the credit agreement or in an ancillary agreement, the pre-contractual information required under article 5(1) shall include a clear and concise statement that such credit agreements do not provide for a guarantee of repayment of the total amount of credit drawn down under the credit agreement, unless such a guarantee is given.

With respect to specific credit agreements (such as credit agreements with overdraft facilities) MSs may provide the information referred to in Annex III instead of that in Annex II. Article 6 states what this information is.

EXEMPTIONS FROM THE PRE-CONTRACTUAL INFORMATION REQUIREMENTS: Article 7 states that, Articles 5 and 6 shall not apply to suppliers of goods or services acting as credit intermediaries in an ancillary capacity. This is without prejudice to the creditor’s obligation to ensure that the consumer receives the pre-contractual information referred to in those Articles.

Whether a person is considered a credit intermediary in the context of an ancillary capacity has been explained in case C-127/15. In that case, it was mentioned that based on Article 3(f) of the Directive, the credit intermediary is a natural or legal person who does not act as a creditor and who, in the context of his commercial, business or professional activity and for remuneration which may be monetary or have any other agreed form of financial consideration, proposes or offers credit agreements to consumers, assists consumers by undertaking preparatory work for entering into credit agreements, or concludes credit agreements with consumers on behalf of the creditor. The intermediary in question is subject to the obligations to provide information to consumers provided for in articles 5 and 6 of the Directive. However, according to Article 7, suppliers of goods or services who act as credit intermediaries in an ancillary capacity are not subject to this obligation. That is, where their activity (the provision of credit) is not the main purpose of their commercial, business or professional activities then they have no obligation to provide information.

In cases where a debt collection agency acting on behalf of a creditor to conclude a credit agreement payable in instalments for an overdue amount, under which the consumer undertakes to repay the total amount of the credit and to pay interest and costs, must be classified as a credit intermediary except if the provision of that service is not the main purpose of its trade, business or professional activities. But it is for the national Court to ascertain (on the basis of all the facts of the case) whether the particular agency acts as a credit broker in general or in the context of an ancillary activity.[6]

 

2.1.3.                OBLIGATION TO ASSESS THE CREDITWORTHINESS OF THE CONSUMER

Based on Article 8 of the Directive, Member States ensure that, before the conclusion of the credit agreement, the creditor assesses the consumer’s creditworthiness on the basis of sufficient information, where appropriate obtained from the consumer and, where necessary, on the basis of a consultation of the relevant database. They must also ensure that if the parties agree to change the total amount of credit after the conclusion of the credit agreement, the creditor updates the financial information at its disposal concerning the consumer and assesses the consumer’s creditworthiness before any significant increase in the total amount of credit.

It is noted that the above article allows creditors to rely only on the information provided by the consumer to check his creditworthiness, given that this is sufficient and that simple statements are accompanied by supporting documents. In addition, the creditor is under no obligation to carry out systematic checks of the information provided by the consumer.[7]

 

2.2.   BURDEN OF PROOF

The burden of proving the fulfillment of the obligations imposed by articles 5 and 8 of the Directive was examined in case C-499/13. In that case, it was decided that the provisions of the Directive are opposed to a national provision according to which the consumer bears the burden of proof of the non-fulfillment of the obligations imposed by articles 5 and 8. Nor is it possible to have a standard term of the contract which states that the consumer accepts that the creditor has properly fulfilled its pre-contractual obligations and in that way shift the burden of proof to the consumer.[8]

 

2.3.   INFORMATION OBLIGATIONS ASSOCIATED WITH THE CREDIT AGREEMENT

INFORMATION INCLUDED IN THE CREDIT AGREEMENT: Article 10 of the Directive states that credit agreements shall be drawn up on paper or on another durable medium and all parties shall receive a copy. The credit agreement does not need to be drawn up in a single document if it is drawn up in writing or on another durable medium.[9]

DURABLE MEDIUM: The reference to a “durable medium” is a reference to a medium which should ensure the consumer, in a manner analogous to a document, that he will be in possession of the required information to be able to view, if such need is presented, his rights. Critical elements, in this regard, are that the consumer can store the information addressed to him personally, ensure that its content will not be altered, and that it can be both accessed for as long as needed and reproduced exactly as they have.[10] A key question is whether the medium is a medium resistant to time. If it is, then it is more likely to be considered as a durable medium than not. Therefore, some websites can be characterized as time-resistant media.[11] Such are the cases when the website provides the user with the possibility to store information addressed to him personally, in such a way that he can then consult it for a period of time proportional to the purpose it serves, as well as reproduce it exactly as it is. In addition, in order for a website to be considered a “time-resistant medium” within the meaning of this provision, any possibility of unilateral modification of its content by the payment service provider or by any other professional entrusted with the management of the website must be excluded.[12]

Based on the article 10(2), the credit agreement specify in a clear and concise manner:

«(a) the type of credit;

 

(b) the identities and geographical addresses of the contracting parties as well as, if applicable, the identity and geographical address of the credit intermediary involved;

 

(c) the duration of the credit agreement;

 

(d) the total amount of 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;

 

(f) the borrowing rate, the conditions governing the application of that rate and, where available, any index or reference rate applicable to the initial borrowing rate, as well as the periods, conditions and procedures for changing the borrowing rate and, if different borrowing rates apply in different circumstances, the abovementioned information in respect of all the applicable rates;

 

(g) the annual percentage rate of charge and the total amount payable by the consumer, calculated at the time the credit agreement is concluded; all the assumptions used in order to calculate that rate shall be mentioned;

 

(h) the amount, number and frequency of payments to be made by the consumer and, where appropriate, the order in which payments will be allocated to different outstanding balances charged at different borrowing rates for the purposes of reimbursement;

 

According to case C-42/15, this article has the meaning that the credit agreement is not required to specify each payment that the consumer must make by mentioning a specific date, as long as the terms of this agreement make it possible for the consumer to easily specify and with certainty the dates of payments.[13]

(i) where capital amortisation of a credit agreement with a fixed duration is involved, the right of the consumer to receive, on request and free of charge, at any time throughout the duration of the credit agreement, a statement of account in the form of an amortisation table.

 

 The amortisation table shall indicate the payments owing and the periods and conditions relating to the payment of such amounts; the table shall contain a breakdown of each repayment showing capital amortisation, the interest calculated on the basis of the borrowing rate and, where applicable, any additional costs; where the interest rate is not fixed or the additional costs may be changed under the credit agreement, the amortisation table shall indicate, clearly and concisely, that the data contained in the table will remain valid only until such time as the borrowing rate or the additional costs are changed in accordance with the credit agreement;

It is noted that the credit agreement which has a fixed duration and on the basis of which the capital is repaid by installments, is not required to specify exactly, in the form of an amortisation table, the part of each installment intended for the repayment of the capital. In fact, in case such obligation was imposed by national legislation, this would be considered as contrary to the provisions of the Directive.[14]

Based on Article 10(3), the above statement of account is provided whenever the consumer requests it, free of charge during the credit agreement.

(j) if charges and interest are to be paid without capital amortisation, a statement showing the periods and conditions for the payment of the interest and of any associated recurrent and non-recurrent charges;
 (k) where applicable, the charges for maintaining one or several accounts recording both payment transactions and drawdowns, unless the opening of an account is optional, together with the charges for using a means of payment for both payment transactions and drawdowns, and any other charges deriving from the credit agreement and the conditions under which those charges may be changed;

 

(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;

 

(m) a warning regarding the consequences of missing payments;

 

(n) where applicable, a statement, that notarial fees will be payable;

 

(o) the sureties and insurance required, if any;

 

(p) the existence or absence of a right of withdrawal, the period during which that right may be exercised and other conditions governing the exercise thereof, including information concerning the obligation of the consumer to pay the capital drawn down and the interest in accordance with Article 14(3)(b) and the amount of interest payable per day;

 

(q) information concerning the rights resulting from Article 15 as well as the conditions for the exercise of those rights;

 

(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;

 

(v) where applicable, the name and address of the competent supervisory authority.»

 

Where the credit agreement provides for an overdraft facility the information specified is less. This is contained in article 10(5) of the Directive.

INFORMATION CONCERNING THE BORROWING RATE : Based on the article 11, the consumer must be informed of any change in the borrowing rate, on paper or another durable medium, before the change enters into force. The information must state the amount of the payments to be made after the entry into force of the new borrowing rate and information about the change. But it is acceptable that parties may agree in the credit agreement that the information referred to in article 11(1) is to be given to the consumer periodically in cases where the change in the borrowing rate is caused by a change in a reference rate, where the new reference rate is made publicly available by appropriate means and  is also kept available in the premises of the creditor.

RIGHTS IN CONNECTION WITH CREDIT AGREEMENTS IN THE FORM OF AN OVERDRAFT FACILITY: Where a credit agreement provides for an overdraft facility, the consumer shall be kept regularly informed by means of a statement of account, on paper or on another durable medium for specific information such as the precise period to which the statement of account relates, the amounts of drawdowns, the balance from the previous statement, the new balance, the borrowing rate applied etc. Again, in such contracts, the consumer must be be informed on paper or another durable medium of increases in the borrowing rate, or in any charges payable, before the change in question enters into force (article 12).

RIGHTS IN OPEN-ENDED CREDIT AGREEMENTS: Article 13 refers to open-ended credit agreements. In such cases the consumer may effect standard termination of an open-end credit agreement free of charge at any time unless the parties have agreed on a period of notice. Such a period may not exceed one month. The creditor may effect standard termination of an open-end credit agreement by giving the consumer at least two months’ notice drawn up on paper or on another durable medium. If agreed in the credit agreement, the creditor may, for objectively justified reasons, terminate the consumer’s right to draw down on an open-end credit agreement.

RIGHT OF WITHDRAWAL: Article 14 refers to the 14-day right of withdrawal of the consumer from the credit agreement. The period starts from the day of the conclusion of the contract or receipt of the terms of the contract and the information according to article 10.

If the consumer exercises his right of withdrawal, in order to give effect to the withdrawal before the expiry of the deadline, he must notify this to the creditor in line with the information given by the creditor pursuant to Article 10(2)(p) by means which can be proven in accordance with national law. The deadline is deemed to have been met if the notification, is on a paper or on another durable medium that is available and accessible to the creditor, is dispatched before the deadline expires; and 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 to the creditor, of notification of the withdrawal. The interest is calculated on the basis of the agreed borrowing rate. The creditor is 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.

The MSs may set a deadline during which the execution of the contract cannot begin.

Ιt is noted that if an ancillary service relating to the credit agreement is provided by the creditor or by a third party on the basis of an agreement between the third party and the creditor, the consumer is no longer be bound by the ancillary service contract if the consumer exercises his right of withdrawal from the credit agreement in accordance with that Article. The same applies in relation to linked credit agreements – that is, based on Article 15, where the consumer has exercised a right of withdrawal, based on Community law, concerning a contract for the supply of goods or services, he is no longer bound by a linked credit agreement.

CONSUMER RIGHTS IN RELATION TO LINKED CREDIT AGREEMENTS: Based on Article 15(2), where the goods or services covered by a linked credit agreement are not supplied, or are supplied only in part, or are not in conformity with the contract for the supply thereof, the consumer shall have the right to pursue remedies against the creditor if the consumer has pursued his remedies against the supplier but has failed to obtain the satisfaction to which he is entitled according to the law or the contract for the supply of goods or services.

RIGHT OF EARLY REPAYMENT: According to Article 16, the consumer is entitled at any time to discharge fully or partially his obligations under a credit agreement. In such cases, he is entitled to a reduction in the total cost of the credit, such reduction consisting of the interest and the costs for the remaining duration of the contract.

In such a case the creditor is entitled to compensation for possible costs directly linked to early repayment of credit provided that the early repayment falls within a period for which the borrowing rate is fixed. Such compensation may not exceed 1% of the amount of credit repaid early, if the period of time between the early repayment and the agreed termination of the credit agreement exceeds one year. If the period does not exceed one year, the compensation may not exceed 0,5% of the amount of credit repaid early. In no case shall the compensation exceed the interest that would be due from early repayment until the due date. In cases where the creditor requests compensation beyond his actual loss, the consumer may request a corresponding reduction.

In the following cases, compensation for early repayment is not allowed:

«a) if the repayment has been made under an insurance contract intended to provide a credit repayment guarantee;

 

(b) in the case of overdraft facilities; or

 

(c) if the repayment falls within a period for which the borrowing rate is not fixed.»

 

ASSIGNMENT OF RIGHTSBased on Article 17, in the event of an assignment to a third party, of the creditor’s rights under a credit agreement or the agreement itself, the consumer shall be entitled to plead against the assignee any defence which was available to him against the original creditor, including set-off where the latter is permitted in the Member State concerned.

Finally, it should be mentioned that based on Article 17(2), the consumer must be informed of the assignment referred to except where the original creditor, by agreement with the assignee, continues to service the credit vis-à-vis the consumer.

OVERRUNNING: In relation to current account opening contracts, if there is a possibility of overruning, the contract must also contain the borrowing rate, the conditions governing the application of that rate and any index or reference rate applied to the original borrowing rate, the charges applicable from the time of the conclusion of the credit agreement and, as the case may be, the conditions under which these charges can be changed. This information is regularly provided in writing or on another durable medium.

In the event of a significant overrunning exceeding a period of one month, the creditor shall inform the consumer without delay, on paper or on another durable medium:

«(a) of the overrunning;

 

(b) of the amount involved;

 

(c) of the borrowing rate;

 

(d) of any penalties, charges or interest on arrears applicable.»

 

ANNUAL PERCENTAGE RATE OF CHARGE: Article 19 of the Directive refers to the method of calculating the APR. It is calculated in accordance with the mathematical formula set out in Part I of Annex I. To calculate the APR the following principles are observed:

  • The APR is the total cost of the credit for the consumer, expressed as an annual percentage of the total amount of the credit. The total cost of credit for the consumer is the total of charges, including interest, commissions, taxes and any other kind of fees, which the consumer is required to pay for the credit agreement and which the creditor is aware of, except notarial costs. Costs related to additional services related to the credit agreement, in particular insurance premiums, are also included if, in addition, the conclusion of the service agreement is mandatory for the approval of the credit or for its granting under the terms and conditions advertised.
  • In the total cost of credit for the consumer (unless the opening of the account is optional and the costs of the account have been clearly and separately shown in the credit agreement or in any other agreement concluded with the consumer) the costs of maintaining an account recording both payment transactions and drawdowns, the costs of using a means of payment for both payment transactions and drawdowns, and other costs relating to payment transactions are included.
  • The costs incurred by the consumer due to breach of any of his obligations under the credit agreement are not taken into account.
  • The additional costs to the purchase price that the consumer has to pay when buying goods or services, whether he buys on credit or in cash, are not included.
  • The calculation of the APR is based on the assumption that the credit agreement is still valid for its entire agreed duration and that the creditor and the consumer fulfill their obligations in accordance with the terms and on the dates specified in the credit agreement. For credit agreements that contain clauses which allow for the variation of the borrowing rate and, where applicable, of the charges included in the APR, but the amount of which cannot be precisely determined at the time of calculation, the APR is calculated according to the presumption that the interest rate and other costs remain fixed at their initial level and apply until the end of the credit agreement.
  • Where necessary, the additional assumptions set out in Annex I may be used in calculating the annual percentage rate of charge (for example, in cases where the credit agreement gives the consumer a right of choice regarding withdrawals, the presumption is that a full and immediate withdrawal of the total amount of the credit is made).

 

2.4.   EXAMINATION BY THE COURT ON ITS OWN MOTION

According to case C-377/14, a national court has an obligation, in the event that a dispute arises before it, relates to claims arising from a credit agreement within the meaning of the Directive, to examine in its own motion the issue of whether the obligation to provide information provided by this provision, and to give way to all the consequences brought about by the violation of such provision, according to national law, provided that such consequences meet the conditions of article 23 (for sanctions – see section 3.4. below) of the Directive. [15]

3. OBLIGATIONS/CHOICES OF MEMBER STATES

3.1.   PRE-CONTRACTUAL INFORMATION

PRE- CONTRACTUAL INFORMATION: Based on Article 5(6) Member States ensure that creditors and, where applicable, credit intermediaries provide adequate explanations to the consumer, in order to place the consumer in a position enabling him to assess whether the proposed credit agreement is adapted to his needs and to his financial situation, where appropriate by explaining the pre-contractual information to be provided in accordance with paragraph 1, the essential characteristics of the products proposed and the specific effects they may have on the consumer, including the consequences of default in payment by the consumer. Member States may adapt the manner by which and the extent to which such assistance is given, as well as by whom it is given, to the particular circumstances of the situation in which the credit agreement is offered, the person to whom it is offered and the type of credit offered.

According to case C-449/13 although the creditor may provide the consumer with sufficient information, it is possible that based on the assessment of the creditworthiness of the consumer, the specific information needs to be adapted and communicated to the consumer in due time, before signing the credit agreement, without however requiring the drawing up of a specific document. [16]

OBLIGATION TO ASSESS THE CREDIT WORTHINESS OF THE CONSUMER: This is referred to in article 8 and it has been analysed above. However, it should be noted that based on Article 9, each Member State shall, in the case of cross-border credit ensure access for creditors from other Member States to databases used in that Member State for assessing the creditworthiness of consumers. If the credit application is rejected on the basis of consultation of a database, the creditor shall inform the consumer immediately and without charge of the result of such consultation and of the particulars of the database consulted.

3.2.   IN RELATION TO MATTERS RELATING TO THE CREDIT AGREEMENT

RIGHT OF WITHDRAWAL: By virtue of Article 14(7) the Article in question (which deals with withdrawal) applies without prejudice to any rule of national law establishing a period of time during which the performance of the contract may not begin.

EARLY REPAYMENT: In relation to early repayment, Article 16(4) states that Member States have the right to determine that such compensation may be claimed by the creditor only on condition that the amount of the early repayment exceeds the threshold defined by national law but in no case can it be more than €10,000 within a 12-month period.

Also, the Member States can allow a creditor to demand higher compensation where he can prove a loss that exceeds the rates of 0.5% and 1% mentioned in Section 2.3. above.

 

3.3.   IN RELATION TO CREDITORS AND CREDIT INTERMEDIARIES

REGULATION OF CREDITORS: According to Article 20, Member States must ensure that creditors are supervised by a body or authority independent from financial institutions, or regulated.

OBLIGATIONS OF CREDIT INTERMEDIARIES: Article 21 states that Member States shall ensure the following in relation to credit intermediaries:

«a) a credit intermediary indicates in advertising and documentation intended for consumers the extent of his powers, in particular whether he works exclusively with one or more creditors or as an independent broker;

 

(b) the fee, if any, payable by the consumer to the credit intermediary for his services is disclosed to the consumer, and agreed between the consumer and the credit intermediary on paper or another durable medium before the conclusion of the credit agreement;

 

(c) the fee, if any, payable by the consumer to the credit intermediary for his services is communicated to the creditor by the credit intermediary, for the purpose of calculation of the annual percentage rate of charge.»

 

3.4.   PENALTIES

Based on Article 23, Member States must 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.

Based on case C-42/15 in the event that national legislation makes the contract interest-free and without costs in case of non-compliance with the information duties of Article 10(2), the legislation in question is valid as non-inclusion of the elements of Article 10(2) may call into question the consumer’s ability to assess the content of his commitment.

The deterrent nature of the sanctions was examined in case C-565/12. In that case it was held that the national system of sanctions under which, in case of breach by the creditor of its obligation to assess, before concluding the loan agreement, the creditworthiness of the borrower by carrying out a search in the relevant database, was incompatible with the Directive. The reason was because the sanctions prevented the creditor from collecting contractual interest but allowed him to claim statutory interest from the date of the judgment, which statutory interest was increased by 5% at the expiry of the 2 month period from the judgment if the borrower did not fully repay his debt, with the result that the creditor may, even after the application of the sanction, be in a substantially similar position if he collected the contractual interest.[17]

OUT-OF-COURT DISPUTE RESOLUTION: Member States ensure that adequate and effective out-of-court dispute resolution procedures are in place.

 

4. OTHER RELEVANT PROVISIONS

Directive 87/102/EEC was repealed with effect from 12 May 2010.

 

[1] C-602/10, SC Volksbank România SA v. Autoritatea Naţională pentru Protecţia Consumatorilor — Comisariatul Judeţean pentru Protecţia Consumatorilor Călăraşi (CJPC)

[2] C‑127/15, Verein für Konsumenteninformation v. INKO, Inkasso GmbH, para. 39, 41

[3] In such cases, only articles 1-3, 4(1), 4(2)(a)-(c), 4(4), 6-9, 10(1), 10(4), 10(5) apply ), 12,15,17 and 19-32.

[4] In such cases, only articles 1-3, 18, 20, 22 -32 apply.

[5] C-377/14 Ernst Georg Radlinger, Helena Radlingerová ν. FINWAY a.s., παρά 86, 87 και 91

[6] C – 127/15 Verein für Konsumenteninformation v. INKO, Inkasso GmbH, para 43, 44, 46-48, 53

[7] C-449/13, CA Consumer Finance ν. Ingrid Bakkaus, Savary Charline Bonato,

[8] C-449/13, CA Consumer Finance ν. Ingrid Bakkaus, Charline Bonato, Savary, Florian Bonato

[9] C-42/15, Home Credit Slovakia a.s. v. Klára Bíróová

[10] C‑375/15, BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG ν. Verein für Konsumenteninformation, para. 42

[11] C‑375/15, BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG ν. Verein für Konsumenteninformation, para. 43

[12] C‑375/15, BAWAG PSK Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG ν. Verein für Konsumenteninformation, para. 44

[13][13] C-42/15, Home Credit Slovakia a.s. v. Klára Bíróová

[14] C-42/15, Home Credit Slovakia a.s. v. Klára Bíróová

[15] C-377/14 Ernst Georg Radlinger, Helena Radlingerová ν. FINWAY a.s.

[16] C-449/13, CA Consumer Finance ν. Ingrid Bakkaus, Charline Bonato, Savary, Florian Bonato

[17] C-565/12LCL Le Crédit Lyonnais, SA ν. Fesih Kalhan

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Directive 12 – Product Liability Directive (Directive 85/374/EEC)
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Evripides Hadjinestoros Lawyer
Evripides is a partner at a law firm and the founder of the Cyprus Center for Alternative Dispute Resolution. After completing his law degree, LLB at the Queen Mary University of London in 2009, he completed his master's degree in LLM corporate law at University College London. He graduated with Distinction. In 2016, Evripides published the book "Sale of Goods and Consumer Protection in Cyprus". He has taught and teaches extensively on issues related to commercial and consumer law at the European University of Cyprus.