OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 14 February 2019 (1)
Case C‑58/18
Michel Schyns
v
Belfius Banque SA
(Request for a preliminary ruling from the Justice de Paix du canton de Visé (Magistrate of the Canton of Visé, Belgium))
(Request for a preliminary ruling — Consumer protection — Directive 2008/48/EC — Pre-contractual obligations — Obligation on the creditor to find the type and the amount of credit most suitable, taking into account the consumer’s financial situation at the time the credit agreement is concluded and the purpose of the credit — Obligation on the creditor to refrain from concluding the agreement where there is reason to take the view that the consumer will not be able to fulfil the obligations arising from the agreement)
I. Introduction
1. In these preliminary ruling proceedings the Court is to give an interpretation of Directive 2008/48 on credit agreements for consumers. (2) It is being asked, in essence, to clarify the relationship between the different pre-contractual obligations on the creditor. The specific points at issue are, first, the extent of the pre-contractual obligation to provide explanations under Article 5(6) of Directive 2008/48 and, second, the potential importance of the assessment of the creditworthiness of the consumer provided for in Article 8 of Directive 2008/48 for the conclusion of the agreement.
2. The questions of interpretation on these points referred by a Belgian court at first instance must be examined against the background of the ‘[targeted] full harmonisation’ (3) which Directive 2008/48 is intended to achieve. Thus, in the final analysis, the question arises of the extent to which such harmonisation precludes further-reaching rules of national law, even if those rules might offer effective protection for consumers against rash or uninformed borrowing and thus meet one of the main objectives of Directive 2008/48. This issue once again (4) illustrates the tension between the high level of consumer protection pursued in principle by Directive 2008/48 (5) and the completion of an internal market, also being pursued, by stemming legal fragmentation. (6)
II. Legal framework
A. EU law
3. According to Article 1, the purpose of Directive 2008/48 is to harmonise certain aspects of the laws, regulations and administrative provisions of the Member States concerning agreements covering credit for consumers.
4. Article 5 of Directive 2008/48 concerns pre-contractual information. Paragraph 6 thereof states:
‘Member States shall 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.’
5. Article 8(1) of Directive 2008/48 imposes on the creditor an obligation to assess the creditworthiness of the consumer before the conclusion of the agreement and provides:
‘Member States shall 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. Member States whose legislation requires creditors to assess the creditworthiness of consumers on the basis of a consultation of the relevant database may retain this requirement.’
6. With regard to the intended harmonisation, Article 22(1) of Directive 2008/48 provides as follows:
‘Insofar 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.’
7. Lastly, under Article 23 of Directive 2008/48, Member States must lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to the directive and take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
B. National law
8. Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (7) was transposed in Belgium by the Law on consumer credit and its implementing provisions. (8) Directive 2008/48 was transposed by an amendment to that Law. (9) Finally, the Law of 19 April 2014 (Moniteur Belge of 28 May 2014, p. 41686; German version published in Moniteur Belge of 10 January 2017) repealed the Law on consumer credit and incorporated its provisions with effect from 1 April 2015 into the Code on Economic Law.
9. Article 10 of the Law on consumer credit referred, in connection with the assessment of the creditworthiness of the consumer, to ‘accurate and full information [requested from the consumer] which [the creditor or the credit intermediary] considers necessary to assess his financial situation and his ability to repay and in any event his current financial obligations’. (10)
10. The first subparagraph of Article 11(4) of the Law on consumer credit, in the version applicable at the material time, (11) reads as follows:
‘Creditors and, where applicable, credit intermediaries shall 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.’
11. The first and second paragraphs of Article 15 of the Law on consumer credit, in the version applicable at the material time, (12) provide:
‘The creditor and the credit intermediary are under an obligation, within the framework of the credit agreements which they usually offer or in which they are usually involved, to find the type and the amount of credit most suitable, taking into account the consumer’s financial situation at the time the credit agreement is concluded and the purpose of the credit.
The creditor may conclude a credit agreement only if, having regard to the information which is or should have been available to him, particularly on the basis of the consultation required under Article 9 of the Loi du 10 août 2001 relative à la Centrale des crédits aux particuliers (Law of 10 August 2001 on the Central Office for Credits to Individuals) and on the basis of the information referred to in Article 10, he must reasonably take the view that the consumer will be able to fulfil the obligations arising from the agreement.’
12. Article 19(1) and (2) of the Law on consumer credit (13) states:
‘Where the credit agreement mentions goods or services financed or the amount of the credit agreement is paid directly by the creditor to the seller or service provider, the consumer’s obligations shall take effect only from delivery of the goods or services; in the case of a sale or the provision of a service involving sequential performance, they shall take effect from the commencement of the delivery of the goods or the provision of the service and end in the event of an interruption thereto, unless the consumer receives the amount of credit himself and the identity of the seller or service provider is not known to the creditor.
The amount of credit may not be transferred to the seller or service provider until after the creditor has been notified of the delivery of the goods or the provision of the service.’
III. Facts and main proceedings
13. In a contract concluded with Mr Schyns on 8 May 2012, SPRL HOME VISION (‘Home Vision’) undertook to fit a photovoltaic installation at a price of EUR 40 002. (14) Home Vision also undertook to take on the repayment of monthly loan instalments of EUR 622.41 against transfer of the green certificates which the installation produces for 10 years. Further details of this loan are not evident from the request for a preliminary ruling.
14. The agreed price was invoiced on 10 May 2012. On 22 May 2012, S.A. DEXIA BANQUE BELGIQUE, as the legal predecessor of BELFIUS BANQUE (‘Belfius Banque’), granted Mr Schyns a loan, known as ‘Eco-Crédit Habitation’, for an amount of EUR 40 002 with a duration of 120 months, which was repayable by monthly instalments of EUR 427.72. The loan amount was paid to Mr Schyns, who in turn transferred it to Home Vision.
15. However, the agreed photovoltaic installation was never fitted with the result that the financing agreed in the contract of 8 May 2012 did not come into effect. On 5 December 2013, Home Vision was declared bankrupt.
16. After Mr Schyns had paid the monthly loan instalments under the credit agreement of 22 May 2012 for more than 4 years, he brought an action against the creditor on 21 December 2016 and sought the rescission of the contract on account of Belfius Banque’s wrongful conduct and release from all repayment obligations. On 15 May 2017, he sought, in addition to reimbursement of costs, a declaration that the credit agreement of 22 May 2012 was null and void and that, with effect from December 2016, he was released from all repayment obligations. Belfius Banque disputed the claims and alternatively suggested referring a question to the Court of Justice for a preliminary ruling.
IV. Request for a preliminary ruling and procedure before the Court
17. By order of 22 January 2018, received on 30 January 2018, the Justice de Paix du canton de Visé (Magistrate of the Canton of Visé, Belgium) referred the following questions to the Court for a preliminary ruling pursuant to Article 267 TFEU:
‘(1) (a) Does Article 5(6) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers, in so far as it is intended to ensure that the consumer will be in a position to assess whether the proposed credit agreement is suited to his needs and to his financial situation, preclude the wording of the first paragraph of Article 15 of the Loi sur le crédit à la consommation (Law on consumer credit) (repealed and now replaced by Article VII.75 of the Code de droit économique (Code on Economic Law)), in so far as it provides that the creditor and the credit intermediary must find, within the framework of the credit agreements which they usually offer or in which they are usually involved, the type and the amount of credit most suitable, taking into account the consumer’s financial situation at the time the credit agreement is concluded and the purpose of the credit inasmuch as that provision establishes a general obligation on the creditor or the credit intermediary to find the most suitable credit for the consumer which is not included in the wording of the abovementioned directive?
(b) Does Article 5(6) of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers, in so far as it is intended to ensure that the consumer will be in a position to assess whether the proposed credit agreement is suited to his needs and to his financial situation, preclude the wording of the second paragraph of Article 15 of the Loi sur le crédit à la consommation (repealed and now replaced by Art. Vll.77(2) subparagraph 1 of the Code de droit économique), in so far as the creditor may conclude a credit agreement only if, having regard to the information which is or should have been available to him, particularly on the basis of the consultation required under Article 9 of the Loi du 10 août 2001 relative à la Centrale des crédits aux particuliers (Law of 10 August 2001 on the Central Office for Credits to Individuals) and on the basis of the information referred to in Article 10, he must reasonably take the view that the consumer will be able to fulfil the obligations arising from the agreement inasmuch as it follows that the creditor must himself decide on the expediency of the possible conclusion of a credit agreement on behalf of the consumer?
(2) In the event of a negative reply to the first question, must Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers be interpreted as always requiring the creditor and the credit intermediary to assess, on behalf of a consumer, the expediency of the possible conclusion of a credit agreement?’
18. In the preliminary ruling proceedings before the Court, written observations were submitted by Belfius Banque, as the defendant in the main proceedings, the Kingdom of Belgium and the European Commission. The same parties were also represented at the hearing of 28 November 2018.
V. Admissibility of the request for a preliminary ruling
19. The very brief statement of reasons in the request for a preliminary ruling raises doubts as to the admissibility of the request for a preliminary ruling in view of the requirements governing content under Article 94 of the Rules of Procedure of the Court of Justice.
20. It is settled case-law that the Court may refuse to give a ruling on a question referred by a national court where it does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it. (15) The need to provide an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. (16)
21. It is also settled case-law that the information provided in orders for reference must not only enable the Court to give useful answers but also serve to ensure that the governments of the Member States and other interested persons are given an opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice. It is for the Court to ensure that that opportunity is safeguarded, given that, under Article 23, only the orders for reference are notified to the interested parties, accompanied by a translation in the official language of each Member State, but excluding any case file that may be sent to the Court by the national court. (17)
22. In this case, however, it must be stated that the referring court has confined itself to giving only a brief description of the facts of the case (18) and to citing only a few rules of national law. For example, the order for reference reproduces only the first two paragraphs of Article 15 and (extracts of) Article 10 of the Law on consumer credit. The creditor’s obligations under those provisions give rise to the referring court’s doubts of interpretation in respect of Article 5(6) of Directive 2008/48.
23. It was not made clear that Article 5(6) of Directive 2008/48 was transposed verbatim into Belgian law, that is, according to the Belgian Government, into Article 11(4) of the Law on consumer credit. The rules of national law on linked credit agreements, presumably Article 19 of that Law, were not cited even though they were the basis for the principal claim made by the applicant in the main proceedings. Furthermore, there is no mention of the legal consequences under national law in the case of failure to fulfil the obligations arising from the first and second paragraphs of Article 15. (19) This makes it impossible to understand the connection between a possible failure to fulfil obligations by the creditor and the claims made by the applicant in the main proceedings.
24. Under these circumstances, the question may be asked whether the Court has sufficient information regarding the facts and the applicable national legislation to provide a useful answer to the questions referred to it.
25. It is settled case-law that requests for a preliminary ruling which concern the interpretation of EU law enjoy a presumption of relevance. (20) In addition, in this case the Belgian Government was able to supplement the description of the relevant rules of national law in its written observations.
26. However, this does not alter the fact that the incomplete description of the rules of national law and the brief statements regarding the facts have unnecessarily restricted the opportunity to submit written observations granted to Member States by Article 23 of the Statute of the Court of Justice. In this connection, the extent to which the missing information can be supplemented by research done by the parties or the Court must be disregarded. It should be stated at least that the incomplete information regarding the facts and the applicable national law make it significantly more difficult for the Court to give useful answers to the questions referred.
27. In the light of these considerations, I take the view that the request for a preliminary ruling as a whole does not meet the requirements laid down in Article 94 of the Rules of Procedure of the Court of Justice and should be rejected as inadmissible.
VI. Substantive assessment of the questions referred for a preliminary ruling
28. Before the questions referred are examined in the alternative, the comments made by the Belgian Government in its written observations regarding the notion of ‘linked credit agreement’ give cause to consider the suggestion made by that Member State to extend the examination of the questions referred to include the relevant directive provisions.
A. The suggestion made by the Belgian Government to include the directive provisions relating to linked credit agreements in the assessment
29. It is clear from the request for a preliminary ruling that the basis for the principal claim of the applicant in the main proceedings is that the amount of the loan was transferred before notification of the provision of the agreed service and thus in breach of the protective rule laid down in Article 19 of the Law on consumer credit. This rule of national law, which was not reproduced in the request for a preliminary ruling, (21) is applicable to linked credit agreements and is intended to ensure, in particular, that the consumer’s obligations under the credit agreement take effect only from delivery of the goods or services financed. That rule thus transposes the requirements laid down in Article 11 of Directive 87/102 and now Article 15 of Directive 2008/48.
30. The referring court nevertheless considers that the protective rule contained in Article 19 of the Law on consumer credit is not applicable. It acknowledges that there is a close connection between the contract concluded by the consumer with Home Vision and the credit agreement. However, the referring court considers that the conditions for the application of the rule in question are not met because, first, the credit agreement does not mention the goods or services to be financed and, second, a payment of the amount of credit was not made by the creditor directly to the seller or service provider.
31. The Belgian Government rightly states in this regard that the creditor’s obligation to specify the financed transaction in the credit agreement in the case of linked credit agreements stems from Article 10(2)(e) of Directive 2008/48 and, in particular, gives rise to the applicability of the protective rules under Article 15 of Directive 2008/48. (22) However, the interpretation of that obligation implicitly adopted by the national court deprives the consumer concerned of that protection as it would ultimately be at the discretion of the creditor to specify the financed transaction. (23) It seems questionable at least whether, in view of the obligation on a national court to give an interpretation in conformity with a directive, (24) this interpretative conclusion is consistent with the aim pursued by Directive 2008/48.
32. Against this background, the Belgian Government suggests that the Court consider the creditor’s obligation under Article 10(2)(e) of Directive 2008/48 to specify the financed transaction in order to clarify its scope in cases like that in the main proceedings.
33. A question of interpretation does actually arise from the fact that the rules of Directive 2008/48 concerning ‘linked credit agreements’ are characterised by what could be described as an unfortunate reciprocal reference. Whilst Article 3(n) of Directive 2008/48 defines linked credit agreements inter alia as those which explicitly specify the specific goods or the provision of a specific service, Article 10(2)(e) stipulates that the obligation introduced by that provision to specify the (financed) good or service applies (only) in the case of linked credit agreements.
34. The present case is not really capable, however, of dispelling the difficulty of interpretation which thus arises. It is true that the Court is free to take into consideration rules of EU law to which the national court did not refer in its questions in order to provide a useful reply to the court. (25)In the present request for a preliminary ruling, however, the referring court has made clear that it does not consider the legislation on linked credit agreements to be relevant to the decision. In the context of the division of responsibilities between the Court and national courts this determination must be accepted, as in preliminary ruling proceedings it is not for the Court to specify the provisions of national law applicable to the main proceedings. (26) Even if the Court had before it the factual or legal material in order usefully to examine this question of interpretation, its reply would thus be hypothetical in any case. An extension of the preliminary ruling proceedings to this question, on which, moreover, the other parties have not submitted observations, must therefore be rejected.
B. Question 1(a)
35. Question 1(a) concerns the interpretation of Article 5(6) of Directive 2008/48. The referring court would like to know, in essence, whether the intention of the pre-contractual obligation to provide explanations provided for therein, namely to ensure that the consumer will be in a position ‘to assess whether the proposed credit agreement is suited to his needs and to his financial situation’, precludes a national form of that provision under which the creditor and, where applicable, the credit intermediary must find, within the framework of the credit agreements which they usually offer or in which they are usually involved, the type and the amount of credit most suitable, taking into account the consumer’s financial situation at the time the credit agreement is concluded and the purpose of the credit. The point at issue is thus whether and to what extent the obligation, laid down by Article 5(6) of Directive 2008/48, to explain the pre-contractual information in accordance with Article 5(1) of that directive may be extended by rules of national law such that it must include the provision of personal advice to the consumer by the creditor having regard to his financial situation and the specific purpose of the credit.
36. This question will be considered below with reference to the regulatory purpose of the directive provision concerned, its historical background and further observations regarding the intended harmonisation.
1. The purpose of the obligation to provide explanations under Article 5(6) of Directive 2008/48
37. According to its wording, Article 5(6) of Directive 2008/48 lays down an obligation to explain the information to be provided in accordance with paragraph 1 of that article, the essential characteristics of the products proposed and the resulting effects, in particular in the case of a default in payment. Such explanations, to be provided by both the creditor and the credit intermediary, are intended to enable the consumer ‘to assess whether the proposed credit agreement is adapted to his needs and to his financial situation’.
38. It can be inferred from this wording that in principle the consumer is responsible for assessing which agreement is the most appropriate for his needs and financial situation. Accordingly, the Court has held that it is for the consumer, on the basis of the information provided, to decide whether he wishes to be bound by the conditions drafted in advance by the seller or supplier. (27) This finding is also confirmed by the reference to ‘different offers’ and the consumer’s ‘informed decision’ on the conclusion of the agreement in Article 5(1) of Directive 2008/48.
39. At the same time, however, it is undeniable that only pre-contractual communication of information and its explanation with regard to products which are suitable for the consumer’s financial situation and the specific purpose of the credit can constitute meaningful and expedient consumer information. To this effect, the Court stated in CA Consumer Finance (28) that ‘notwithstanding the pre-contractual information which must be provided under Article 5(1) of that directive, the consumer may, before entering into the credit agreement, still need additional assistance in order to decide which credit agreement is the most appropriate for his needs and his financial situation’.
40. The Belgian Government rightly asserts in this connection that the provision of personal advice to the consumer, such as is envisaged by the rule of national law at issue, does not affect the consumer’s freedom of choice and in any case does not absolve him of his responsibility for safeguarding his own interests. In particular, he is at liberty whether or not to follow the advice given by the creditor or the credit intermediary. There is also nothing to prevent him from opting for a product from another supplier, where appropriate.
41. The obligation in question imposed on the creditor by the first paragraph of Article 15 of the Law on consumer credit is thus undoubtedly likely to contribute to achieving the aim pursued by Directive 2008/48 of ensuring that consumers ‘enjoy a high and equivalent level of protection of their interests’. (29) Such an obligation ensures that the consumer is able to decide between the types and amounts of credit which are most suited to his financial circumstances. This assessment is also expressed in the Court’s case-law, according to which the obligation to provide adequate explanations aims to enable the consumer to make a fully informed decision with regard to a type of loan agreement. (30)
42. Nevertheless, it must be pointed out that Directive 2008/48, like a number of other instruments of secondary legislation adopted previously with a view to the completion of the internal market, such as the predecessor measure in Directive 87/102, is based on the idea that consumer information measures do not serve the purposes of consumer protection exclusively.
43. Directive 2008/48 was based on Article 95 EC (now Article 114 TFEU) in conjunction with Article 251 EC. This shows that Directive 2008/48 aims to reconcile ensuring a high level of consumer protection with the interest of a functioning internal market through the approximation of the provisions laid down by law for matters specifically covered by it. The EU legislature envisaged that competition would be increased by placing the informed consumer in a position to decide between different product offerings. (31)
44. Although the provision of personal advice to the consumer going beyond the explanation of pre-contractual information does not appear to be detrimental to this objective, a comparison with other instruments of secondary legislation regulating the sale of financial services nevertheless shows that the EU legislature distinguishes between the pre-contractual communication of information and its explanation, on the one hand, and personal advice, on the other. For example, Directive 2014/17/EU (32) also makes provision for information and practices preliminary to the conclusion of the credit agreement, but draws a sharper distinction between the persons to whom the obligations are addressed (33) and contains in a separate article an obligation to provide explanations similar to Article 5(6) of Directive 2008/48. Advisory services, on the other hand, are covered in a separate provision. (34) In another area of business, ‘investment advice’ is specified as a regulated activity in the context of the rules to ensure investor protection in the MiFID II Directive. (35) A similar approach underlies the Insurance Distribution Directive, (36) which likewise construes advice (37) as a regulated activity of the insurance distributor. This seems appropriate in so far as a duty to provide personal advice to the consumer, investor or policyholder should be linked to the specific characteristics of the legal status of the person subject to the duty. The obligation to provide explanations under Article 5(6) of Directive 2008/48, on the other hand, is addressed to creditors and credit intermediaries.
45. It should thus be stated as an interim conclusion that a duty to provide personal advice to the consumer, like that at issue, contributes to the provision of pre-contractual information to the consumer, without depriving him of the opportunity to decide between different credit products, with the result that it is not contrary to the essential objective of Article 5(6) of Directive 2008/48.
2. The historical background to the obligation to provide explanations under Article 5(6) of Directive 2008/48
46. The historical background to Article 5(6) of Directive 2008/48 illustrates the close relationship between the duty to provide advice and other obligations to provide pre-contractual information and explanations.
47. In the first proposal for a directive, (38) for example, Article 6 provided, under the heading ‘Exchange of information in advance and duty to provide advice’, in paragraph 3, that ‘the creditor and, where applicable, the credit intermediary shall seek to establish, among the credit agreements they usually offer or arrange, the most appropriate type and total amount of credit taking into account the financial situation of the consumer, the advantages and disadvantages associated with the product proposed, and the purpose of the credit’.
48. It was not until the amended proposal for a directive of 2005 (39) that this wording — and ultimately also a duty to provide advice, described as such, for the creditor and the credit intermediary — was abandoned. The currently applicable version of Article 5(6) of Directive 2008/48 has essentially the same wording as the revised Article 5(6) of the amended proposal, which replaced Article 6(3) of the original proposal.
49. The Commission stated the following reasons for this amendment: ‘The concept of a duty to advise was modified. Contrary to some requests from the banking industry, the Commission maintains the concept that a creditor should not merely fulfil the pre-contractual information requirements, but should provide additional explanations in order to enable the consumer to take a well-informed decision. However, in response to a request from the banking sector and some Member States, it was clarified that the consumer is always responsible for his final decision to conclude a credit agreement. Therefore, the reference to advice is specified as a duty to put the consumer in a position to assess the advantages and drawbacks of the loan. In addition, Member States have been given more flexibility to adapt their implementation law to the situation on their markets.’ (40)
50. It is thus apparent from this historical background to Article 5(6) of Directive 2008/48 that the obligation to provide explanations now provided for in that provision is to be understood as a modification of a duty of the creditor and the credit intermediary to provide advice.
51. It must therefore be examined what inferences are to be drawn from this finding in view of the harmonisation intended by Directive 2008/48.
3. The intended harmonisation
52. The Court has already made clear in SC Volksbank România (41) that it follows from Article 22(1) of Directive 2008/48, interpreted in the light of recitals 9 and 10 in its preamble, that, so far as concerns credit agreements which fall within the directive’s scope, the directive provides for full harmonisation. Furthermore, the Court held, with reference to the heading of Article 22, that that harmonisation is imperative in nature. This means that, as regards the matters specifically covered by that harmonisation, (42) the Member States are not authorised to maintain or introduce national provisions other than those provided for by the directive.
53. As it is not disputed in the main proceedings that the contested credit agreement falls within the scope of Directive 2008/48, the assessment of an obligation like that at issue therefore depends, first of all, on the extent to which the obligation imposed by national law on the creditor or the credit intermediary can or cannot be attributed to a matter specifically covered by the harmonisation pursued by Directive 2008/48.
54. It is sufficient in this regard to consider the regulatory content of Directive 2008/48. A comparison with other directives which likewise pursue full harmonisation in the matters covered by them (43) cannot give any indication of the matters covered by the harmonisation pursued by a certain directive. (44) Above all, however, it depends on the directive in question to what extent, in the matters specifically covered by the harmonisation, the Member States can or cannot be granted a degree of flexibility — through the use of options and opening clauses or through special enabling clauses like that in the second sentence of Article 5(6) of Directive 2008/48. (45) It should also be borne in mind in this regard that such flexibility, which ultimately takes account of the limits of the Union’s regulatory competence under Article 114 TFEU, goes hand in hand with continuing legal fragmentation, which runs counter to the objective of the relevant directive. (46)
55. This degree of flexibility also varies in the different matters which are covered by the harmonisation pursued by the directive in question. The relevant factor is the provision of the directive at issue.
56. According to its wording, Article 5(6) of Directive 2008/48 governs an ‘obligation to provide explanations’ in respect the pre-contractual information provided for in that article. The rule of national law at issue supplements the obligation to provide explanations under Article 11(4) of the Law on consumer credit, which transposes Article 5(6) of Directive 2008/48, with an obligation on the creditor which has an almost identical wording to the duty to provide advice under Article 6(3) of the original proposal for a directive. It is clear from the historical background to Article 5(6) of Directive 2008/48, however, (47) that the EU legislature deliberately refrained from introducing such a duty and, instead, laid down an obligation to provide explanations. It is thus clear in any event that the rule of national law at issue falls within the scope of a matter specifically covered by the harmonisation pursued by Directive 2008/48.
57. It must therefore be clarified whether the rule of national law at issue comes under the prohibition laid down in Article 22(1) of Directive 2008/48. The crucial factor is the extent to which it contains provisions other than those provided for by Article 5(6) of Directive 2008/48.
58. The rule of national law at issue lays down an obligation on the creditor which goes beyond the requirements set out in the first sentence of Article 5(6) of Directive 2008/48. However, the second sentence of that provision of the directive allows Member States — while maintaining the fundamental approach of full harmonisation — a degree of flexibility, (48) expressly permitting them to 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’.
59. In fulfilling the obligation in question under the first paragraph of Article 15 of the Law on consumer credit, the creditor must, in accordance with the wording of that provision, take into account the consumer’s financial situation and the purpose of the credit. The creditor’s obligation thus takes due account of the particular circumstances of the person to whom the credit agreement is offered and the type of credit offered. As has already been noted, (49) however, this obligation is addressed equally to creditors and credit intermediaries even though the extent of the advice which these different economic operators are able to offer must be different because of their differing status. The obligation in question, as it has been formulated by the national legislature, thus lacks a differentiation between the persons to whom it is addressed. This appears to be immaterial, however, in so far as the second sentence of Article 5(6) of Directive 2008/48 allows Member States a degree of flexibility, without requiring them to avail themselves of it.
60. It should also be borne in mind in this connection that, according to recital 26, ‘Member States should take appropriate measures to promote responsible practices during all phases of the credit relationship, taking into account the specific features of their credit market’. (50) The obligation at issue imposed on the creditor by the first paragraph of Article 15 of the Law on consumer credit undoubtedly constitutes such a national measure to promote responsible practices during all phases of the credit relationship.
61. In the light of the foregoing, I conclude that Article 5(6) of Directive 2008/48 does not preclude a rule of national law such as the first paragraph of Article 15 of the Law on consumer credit under which the creditor and the credit intermediary must find, within the framework of the credit agreements which they usually offer or in which they are usually involved, the type and the amount of credit most suitable, taking into account the consumer’s financial situation at the time the credit agreement is concluded and the purpose of the credit.
C. Question 1(b)
62. By the second part of its question, the referring court would like to know, in essence, whether the assessment reflected in Article 5(6) of Directive 208/48 to the effect that it is for the consumer to assess which agreement is the most appropriate for his needs and financial situation, precludes a rule of national law like that in the second paragraph of Article 15 of the Belgian Law on consumer credit under which the creditor must refrain from concluding an agreement if, according to the information which is or should have been available to him, there are reasonable doubts as to the consumer’s future ability to pay.
63. It must first be clarified, however, what the connection is between this question and the mandatory assessment of the creditworthiness of the consumer under Article 8 of Directive 2008/48.
1. The subject-matter of the question
64. Question 1(b) refers exclusively to Article 5(6) of Directive 2008/48. It should, however, be noted as a preliminary point that it is apparent from the wording and legislative context (51) of that provision that it concerns pre-contractual obligations. It does not cover, for example, matters relating to the conclusion of the agreement, like the point at issue relating to the possible requirement to have regard to any knowledge of the consumer’s future ability to pay at the time of the conclusion of the agreement, as is evidently provided for in the second paragraph of Article 15 of the Law on consumer credit.
65. Nevertheless, it is for the Court to provide the national court with an answer which will be of use to it and enable it to decide the case before it. The Court thus considers that it is obliged, where necessary, to reformulate the questions referred to it and may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions. (52)
66. In their written observations, the Belgian Government and the Commission made reference to Article 8(1) of Directive 2008/48 and the obligation laid down therein to carry out a pre-contractual assessment of the creditworthiness of the consumer. It must therefore be examined, in the light of that provision of the directive, whether and to what extent this pre-contractual obligation may have effects on the conclusion of the agreement.
2. The schematic position and the spirit and purpose of the mandatory assessment of the creditworthiness of the consumer
67. As the Belgian Government and the Commission rightly state, the creditor’s obligation, before the conclusion of the credit agreement, to assess the consumer’s creditworthiness aims to make creditors accountable and to avoid loans being granted to consumers who are not creditworthy. (53)
68. Article 8(1) of Directive 2008/48 does not, however, make any express provision as to how the creditor is to act if, in the assessment of the creditworthiness of the consumer, reasonable doubts are raised over the consumer’s future ability to fulfil the obligations arising from the proposed credit agreement in the long term or if such doubts should have at least been raised.
69. The Court has already made it clear that under Article 23 of Directive 2008/48 it is for the Member States to establish the system of penalties applicable in the event of infringement of the national provisions concerning the assessment of the borrower’s creditworthiness prior to conclusion of the agreement, adopted pursuant to Article 8 of that directive. (54) The second sentence of Article 23 of Directive 2008/48 provides that such penalties must be effective, proportionate and dissuasive. However, the obligation in question on the creditor to refrain from concluding the agreement if there are reasonable doubts over the consumer’s future ability to pay does not constitute such a penalty. Rather, the mandatory assessment of the creditworthiness of the consumer under Article 8(1) of Directive 2008/48 is a prerequisite of the rule of national law at issue.
70. In my view, however, the — targeted — full harmonisation pursued by Directive 2008/48 does not preclude such an obligation on the creditor because the obligation in question cannot be attributed to the matters specifically covered by the harmonisation.
71. The statements regarding Question 1(a) have already shown that a precise differentiation between the matters specifically covered by the harmonisation and other matters in which Member States retain their regulatory competence is not without problems. As regards the obligation in question on the creditor, it should nevertheless be noted that Directive 2008/48 does not contain a coherent set of rules on the formation of an agreement, for example. Recourse must thus be had to the rules of national law.
72. It is clear that the model underlying Directive 2008/48 of a responsible, informed consumer who is able, on the basis of the information obtained, supplemented if necessary by adequate explanations, to decide whether or not to enter into a contractual obligation (55) does not affect the power enjoyed by the creditor, as an expression of contractual freedom, to refrain from concluding a credit agreement where necessary, for example in accordance with its lending policy.
73. The rejection of a credit application is presupposed, for example, by Article 9(2) — in conjunction with recital 29 — of Directive 2008/48 in so far as that provision imposes on the creditor a specific obligation to provide information in that case. However, Directive 2008/48 does not lay down any further requirements for such rejection of the credit application.
74. In this connection, the view put forward by Belfius Banque that a negative evaluation of creditworthiness in the mandatory assessment under Article 8(1) of Directive 2008/48 can only lead to the consumer being warned before taking out borrowing in accordance Article 5(6) of Directive 2008/48 is unconvincing. It is true that the provisions of the directives are intended, to a large extent, to ensure that the consumer can decide to conclude an agreement ‘in full knowledge of the facts’. (56) However, Article 9 of Directive 2008/48 makes it clear that it is possible to reject his credit application ‘on the basis of consultation of a database’ ‘for assessing the creditworthiness of consumers’.
75. It must thus ultimately be clarified whether rules of national law may, under certain circumstances, oblige the creditor to reject credit applications or at least to refrain from concluding the agreement.
76. The creditor’s obligation to refrain from concluding the agreement if there are reasonable doubts over the consumer’s future ability to pay, as is laid down, for example, in the provision at issue in the second paragraph of Article 15 of the Law on consumer credit, is consistent with the objective of Article 8(1) of Directive 2008/48 of ensuring effective protection of consumers against irresponsible granting of credits which exceed their financial means and may result in their inability to pay.
77. It is not without reason that the Commission points out that the obligation arising from Article 8(1) of Directive 2008/48 would be redundant if the creditor were free to conclude the agreement even in the case of a negative assessment. In my view, regard must also be had to the coherence of consumer-protection and supervisory regulation: appropriate credit risk management by creditors is one of the core concerns of supervision. (57) Responsible lending makes an important contribution to this.
78. This analysis is confirmed by a comparison with the relevant requirements for credit agreements for consumers relating to residential immovable property under Directive 2014/17. (58) Article 18(5)(a) of that directive requires Member States in particular to ensure that ‘the creditor only makes the credit available to the consumer where the result of the creditworthiness assessment indicates that the obligations resulting from the credit agreement are likely to be met in the manner required under that agreement’.
79. On the basis of the above considerations, I propose that the Court answer Question 1(b) to the effect that neither Article 5(6) nor Article 8(1) of Directive 2008/48 precludes a rule of national law such as that at issue in so far as the creditor may conclude a credit agreement only if, having regard to the information which is or should have been available to him, he must reasonably take the view that the consumer will be able to fulfil the obligations arising from the agreement.
D. Question 2
80. By the second question, which does not refer to any specific provision of the directive, the Court is to clarify, in the event of a negative reply to the first question, to what extent Directive 2008/48 can be construed as always requiring the creditor and the credit intermediary to assess, on behalf of a consumer, the expediency of the possible conclusion of a credit agreement.
81. There is ultimately no need to determine the extent to which this question is relevant to the decision because the answer to this question follows from my comments on the two parts of the first question. It is clear from those comments that Directive 2008/48 cannot be construed as always requiring the creditor and the credit intermediary to assess, on behalf of a consumer, the expediency of the possible conclusion of a credit agreement.
82. First of all, the examination of the first part of the question has shown that Article 5(6) of Directive 2008/48 does not preclude a rule of national law which obliges the creditor and the credit intermediary to find the type and the amount of credit most suitable, taking into account the consumer’s financial situation at the time the credit agreement is concluded and the purpose of the credit. The rule at issue takes due account of the objective of Article 5(6) of Directive 2008/48, which is to ensure that the consumer can decide to conclude an agreement in full knowledge of the facts, without disregarding the limits of the degree of flexibility permitted by the second sentence of that provision.
83. Second, the examination of the second part of the question has shown that neither Article 5(6) nor Article 8(1) of Directive 2008/48 precludes a rule of national law which obliges the creditor to refrain from concluding an agreement if the assessment of the creditworthiness of the consumer is negative. An obligation of this nature which is restricted to a particular situation cannot in any case be equated with a general obligation to carry out a systematic assessment of the expediency of the conclusion of the agreement on behalf of a consumer.
84. There is therefore no need to examine the second question separately.
VII. Conclusion
85. In the light of the above statements, I propose that the Court reject the request for a preliminary ruling from the Justice de Paix du canton de Visé (Magistrate of the Canton of Visé, Belgium) as inadmissible.
86. In the alternative, in the event that the Court does not follow that proposal, I propose that the first question be answered as follows:
(1) Article 5(6) of Directive 2008/48 does not preclude a rule of national law such as the first paragraph of Article 15 of the Belgian Law on consumer credit under which the creditor and the credit intermediary must find, within the framework of the credit agreements which they usually offer or in which they are usually involved, the type and the amount of credit most suitable, taking into account the consumer’s financial situation at the time the credit agreement is concluded and the purpose of the credit.
(2) Neither Article 5(6) nor Article 8(1) of Directive 2008/48 precludes a rule of national law such as the second paragraph of Article 15 of the Belgian Law on consumer credit in so far as the creditor may conclude a credit agreement only if, having regard to the information which is or should have been available to him, he must reasonably take the view that the consumer will be able to fulfil the obligations arising from the agreement.