Request for a preliminary ruling from the Landgericht Ravensburg (Germany) lodged on 28 April 2020 — JL v BMW Bank GmbH, DT v Volkswagen Bank GmbH
(Case C-187/20)
Language of the case: German
Referring court
Landgericht Ravensburg
Parties to the main proceedings
Applicants: JL, DT
Defendants: BMW Bank GmbH, Volkswagen Bank GmbH
Questions referred
Is Article 10(2)(a) of Directive 2008/48/EC 1 of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (‘Directive 2008/48/EC’) to be interpreted as meaning that, with regard to the type of credit, it may be necessary to specify that it is a linked credit agreement and/or that it is a fixed-term credit agreement?
Is Article 10(2)(d) of Directive 2008/48/EC to be interpreted as meaning that, with regard to the conditions governing the drawdown of the credit in the case of linked credit agreements for financing the purchase of an item, it is necessary to specify, in the event that the credit amount is disbursed to the seller, that the borrower is released from his liability to pay the purchase price to the extent of the amount disbursed and that the seller must hand over the purchased item to him if the purchase price has been paid in full?
Is Article 10(2)(l) of Directive 2008/48/EC to be interpreted as meaning that the credit agreement
must specify the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement as an absolute number or, at the very least, the current reference interest rate (in this case, the base rate in accordance with Paragraph 247 of the Bürgerliches Gesetzbuch (Civil Code; ‘the BGB’)), from which the interest rate applicable in the case of late payments is obtained by adding a premium (in this case, a premium of five percentage points in accordance with Paragraph 288(1), second sentence, of the BGB), as an absolute number; and
must explain the specific arrangements for adjustment of the interest rate applicable in the case of late payments or, at the very least, must reference the national standards from which such arrangements follow (Paragraph 247 and Paragraph 288(1), second sentence, of the BGB)?
(a) Is Article 10(2)(r) of Directive 2008/48/EC to be interpreted as meaning that the credit agreement must specify a particular method that the consumer can understand for calculating the compensation payable in the event of early repayment of the loan, so that the consumer can calculate at least approximately the compensation payable in the event of early termination?
(b) (if Question (a) above is answered in the affirmative:):
Do Article 10(2)(r) and the second sentence of Article 14(1) of Directive 2008/48/EC preclude national legislation pursuant to which, in the case of incomplete information within the meaning of Article 10(2)(r) of that directive, the period for withdrawal nevertheless commences on conclusion of the agreement and only the creditor’s right to compensation for early repayment of the credit is lost?
Is Article 10(2)(s) of Directive 2008/48/EC to be interpreted as meaning
that the credit agreement must also specify the rights of termination of the parties to the credit agreement regulated under national law, including in particular the borrower’s right of termination with good cause under Paragraph 314 of the BGB, in the case of fixed-term loan agreements, and that express reference must be made to the paragraph in which that right of termination is regulated?
(if Question (a) above is answered in the negative):
that it does not preclude national legislation which stipulates the designation of a national special right of termination as mandatory information within the meaning of Article 10(2)(s) of Directive 2008/48/EC?
that the credit agreement must indicate the time limit for and form of the declaration of termination prescribed for the purpose of exercising the right of termination for all rights of termination of the parties to the credit agreement?
Is Article 10(2)(t) of Directive 2008/48/EC to be interpreted as meaning that the essential formal requirements for a complaint and/or redress in the out-of-court complaint and/or redress procedure must be specified in the credit agreement? Is it insufficient in this respect if reference is made to rules of procedure, which can be accessed on the internet, for out-of-court complaint and/or redress procedures?
In the case of a consumer credit agreement, is the creditor precluded from invoking the plea of forfeiture in respect of the exercise of the right of withdrawal of the consumer pursuant to the first sentence of Article 14(1) of Directive 2008/48/EC
if some of the mandatory information required under Article 10(2) of Directive 2008/48/EC has been neither properly included in the credit agreement nor subsequently duly provided and the period of withdrawal pursuant to Article 14(1) of Directive 2008/48/EC has therefore not begun?
(if Question (a) above is answered in the negative):
if the forfeiture is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer has such knowledge?
In the case of a consumer credit agreement, is the creditor precluded from invoking the plea of abuse of rights in respect of the exercise of the right of withdrawal of the consumer in accordance with the first sentence of Article 14(1) of Directive 2008/48/EC
if some of the mandatory information required under Article 10(2) of Directive 2008/48/EC has been neither properly included in the credit agreement nor subsequently duly provided and the period of withdrawal pursuant to Article 14(1) of Directive 2008/48/EC has therefore not begun?
(if Question (a) above is answered in the negative):
if the abuse of rights is decisively based on the lapse of time since conclusion of the agreement and/or on the complete fulfilment of the agreement by both parties and/or on the creditor’s disposal of the recovered loan amount or the return of the loan security and/or (in the case of a purchase agreement linked with the credit agreement) on the use or sale of the financed object by the consumer, but the consumer had no knowledge of the continued existence of his right of withdrawal in the relevant period and when the relevant circumstances arose and is also not responsible for that lack of knowledge, and the creditor could also not assume that the consumer has such knowledge?
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1 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).