Language of document : ECLI:EU:C:2016:842

Case C42/15

Home Credit Slovakia a.s.

v

Klára Bíróová

(Request for a preliminary ruling from the Okresný súd Dunajská Streda)

(Reference for a preliminary ruling — Directive 2008/48/EC — Consumer protection — Consumer credit — Article 1, Article 3(m), Article 10(1) and (2), Article 22(1) and Article 23 — Interpretation of the expressions ‘on paper’ and ‘on another durable medium’ — Contract referring to another document — Requirement for the agreement to be in ‘written form’ within the meaning of national law — Indication of information required by reference to objective criteria — Information to be included in a fixed-term credit agreement — Effect of failure to include mandatory information — Proportionality)

Summary — Judgment of the Court (Third Chamber), 9 November 2016

1.        Consumer protection — Credit agreements for consumers — Directive 2008/48 — Requirements of form for a credit agreement — No need to include all the information relating to a credit agreement in a single document — National legislation requiring all the details of a credit agreement to be signed by the parties for the purposes of its validity — Lawful

(European Parliament and Council Directive 2008/48, Arts 3(m) and 10(1) and (2))

2.        Consumer protection — Credit agreements for consumers — Directive 2008/48 — Requirements relating to the information to be included in a credit agreement — No obligation to indicate the specific date on which every payment to be made by the consumer falls due

(European Parliament and Council Directive 2008/48, Art. 10(2)(h))

3.        Consumer protection — Credit agreements for consumers — Directive 2008/48 — Requirements relating to the information to be included in a credit agreement — No obligation to include a statement of account in the form of an amortisation table in a fixed-term credit agreement — National rules laying down such an obligation on the part of the lender — Unlawful

(European Parliament and Council Directive 2008/48, Art. 10(2)(h) and (i) and (3))

4.        Consumer protection — Credit agreements for consumers — Directive 2008/48 — National rules on penalties — Requirements relating to the information to be included in a credit agreement — National law deeming a credit agreement not complying with those requirements to be interest-free and free of charges — Lawful — Condition

(European Parliament and Council Directive 2008/48, Arts 10(2) and 23)

1.      Article 10(1) and (2) of Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102, read in conjunction with Article 3(m) of that directive, must be interpreted as meaning that:

–        a credit agreement need not necessarily be drawn up in a single document, but all the information referred to in Article 10(2) of the directive must be set out on paper or on another durable medium;

–        it does not preclude a Member State from providing in its national legislation, first, that a credit agreement falling within the scope of Directive 2008/48 which is drawn up on paper must be signed by the parties and, second, that the requirement that the agreement be signed applies to all the details of that agreement referred to in Article 10(2) of that directive.

Although all the information referred to in Article 10(2) of Directive 2008/48 need not necessarily be included in a single document, attention must, nonetheless, be drawn to the fact that, having regard to Article 10(1) of the directive, all the information listed in Article 10(2) must be set out on paper or on another durable medium and be incorporated into the credit agreement. In addition, in so far as the information referred to in Article 10(2) of Directive 2008/48 must be included in a clear and concise manner, a credit agreement must contain a clear and precise cross-reference to other paper, or other durable, media containing the information that was actually given to the consumer prior to the conclusion of the agreement so as to give him the opportunity to be genuinely apprised of all his rights and obligations.

Under the second subparagraph of Article 10(1) of Directive 2008/48, that article applies without prejudice to any national rules regarding the validity of the conclusion of credit agreements which are in conformity with EU law. To that effect, the requirement for a credit agreement to be signed by the parties forms part of a national rule regarding the validity of the conclusion of credit agreements within the meaning of the second subparagraph of Article 10(1) of Directive 2008/48.

In that regard, where a Member State provides in its national legislation that the requirement that a credit agreement be signed is applicable to all the information to be provided in such an agreement, which is a matter for the referring court to ascertain, neither Directive 2008/48 nor EU law in general precludes such a requirement.

(see paras 33, 34, 39-40, 44, 45, operative part 1)

2.      Article 10(2)(h) of Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102 must be interpreted as meaning that a credit agreement need not indicate the specific date on which every payment to be made by the consumer falls due, provided that the terms of the agreement allow the consumer to ascertain the dates of those payments without difficulty and with certainty.

(see para. 50, operative part 2)

3.      Article 10(2)(h) and (i) of Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102 must be interpreted as meaning that a fixed-term credit agreement, providing for amortisation of the capital in consecutive instalments, need not state, in the form of an amortisation table, the part of each instalment that will be allocated to repayment of capital. Those provisions, read in conjunction with Article 22(1) of that directive, preclude a Member State from imposing such an obligation under national law.

In view of the clear wording of Article 10(2)(h), which provides that a credit agreement need include only the amount, number, frequency and, where appropriate, the order of the payments, and of Article 10(2)(i) and (3), which provides that only on request by the consumer is the creditor under an obligation to provide him with a statement of account in the form of an amortisation table, it may be concluded that Directive 2008/48 does not impose an obligation to include in the credit agreement a statement of account in the form of an amortisation table.

In addition, so far as concerns credit agreements which fall within the scope of Directive 2008/48, Member States may not adopt obligations for the parties to the agreement which are not provided for in that directive where the directive contains provisions harmonised in the area covered by those obligations. That is the case of Article 10(2) of that directive, which provides for harmonisation as regards the information which must imperatively be included in a credit agreement.

(see paras 52-56, 59, operative part 3)

4.      Article 23 of Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102 must be interpreted as not precluding a Member State from providing, under national law, that, where a credit agreement does not include all the information required under Article 10(2) of the directive, the agreement is deemed to be interest-free and free of charges, provided that the information covers matters which, if not included, may compromise the ability of the consumer to assess the extent of his liability.

The obligation to include, in a credit agreement, information such as the annual percentage rate of charge, referred to in Article 10(2)(g) of Directive 2008/48, the number and frequency of payments, in accordance with Article 10(2)(h) of that directive, and, where applicable, a statement that notarial fees will be payable and the sureties and insurance required, as provided for in Article 10(2)(n) and (o) of the directive, constitutes a vitally important obligation. Thus, in so far as failure to include such information in such an agreement may compromise the ability of a consumer to assess the extent of his liability, the penalty of forfeiture by the creditor of entitlement to interest and charges must be considered to be proportionate within the meaning of Article 23 of Directive 2008/48.

(see paras 70, 71, 73, operative part 4)