Case C‑303/20
Ultimo Portfolio Investment (Luxembourg) S.A.
v
KM
(Request for a preliminary ruling from the Sąd Rejonowy w Opatowie I Wydział Cywilny)
Judgment of the Court (Sixth Chamber), 10 June 2021
(Reference for a preliminary ruling – Credit agreements for consumers – Directive 2008/48/EC – Risk of over-indebtedness – Article 8 – Creditor’s obligation to assess the consumer’s creditworthiness – Article 23 – Effective, proportionate and dissuasive nature of the penalty in the event of infringement of that obligation)
1. Consumer protection – Credit agreements for consumers – Directive 2008/48 – Pre-contractual obligations – Obligation of a creditor to check a consumer’s creditworthiness – Objective of consumer protection – Scope
(European Parliament and Council Directive 2008/48, Art. 8(1))
(see paragraphs 28, 29)
2. Consumer protection – Credit agreements for consumers – Directive 2008/48 – Pre-contractual obligations – Obligation of a creditor to check a consumer’s creditworthiness – Infringement – National rules on penalties – Effective, proportionate and dissuasive penalties – Assessment in the light not only of the provision specifically adopted in national law for the purposes of transposing the directive in question, but also of all the provisions of that law – Interpretation of those provisions, so far as possible, in the light of the wording and objectives of Directive 2008/48
(Art. 288, third para., TFEU; European Parliament and Council Directive 2008/48, Arts 8(1) and 23; Council Directive 93/13)
(see paragraphs 30-45, operative part)
Résumé
On 23 May 2018, Aasa Polska, established in Warsaw (Poland), and KM, a natural person, concluded a consumer credit agreement, under which the total amount to be repaid was Polish zlotys (PLN) 8 626.58 (approximately EUR 1 862). The credit was to be repaid in 24 instalments amounting to PLN 408 each (approximately EUR 88). The debt arising from that agreement was assigned by Aasa Polska to Ultimo Portfolio Investment established in Luxembourg (Luxembourg).
As at the date on which the agreement in question was concluded, KM, as well as her husband, owed debts arising from various credit and loan agreements. The debts arising from all those agreements totalled PLN 457 830 (approximately EUR 98 840) and the corresponding monthly payments totalled PLN 9 974.35 (approximately EUR 2 153). As at the same date, KM was employed on the basis of an employment contract with a net salary of PLN 2 300 (approximately EUR 500), whereas her husband did not work for health reasons and received no income.
As stated by the Sąd Rejonowy w Opatowie I Wydział Cywilny (District Court, Opatów, First Civil Division, Poland) – before which an action was brought by Ultimo Portfolio Investment concerning a debt of PLN 7 139.76 (approximately EUR 1 540) – the agreement at issue in the main proceedings was concluded through a credit intermediary and, before the conclusion of that agreement, Aasa Polska did not check KM’s financial situation nor the amount of her debts.
The referring court explained that, under the directive on credit agreements for consumers, (1) Member States must 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. (2) Furthermore, again under that directive, Member States must adopt rules on effective, proportionate and dissuasive penalties applicable to infringements of that obligation, by taking all necessary measures to ensure that they are implemented. (3) According to the referring court, the Polish law in force does not guarantee compliance with those requirements imposed by that directive. Under the national legislation, such non-compliance with the obligation to assess the consumer’s creditworthiness is penalised only by imposing a fine provided for in the Code of minor offences. (4)
Having received a request for a preliminary ruling from the referring court, the Court of Justice holds that the examination of the effectiveness, proportionality and dissuasiveness of the penalties provided for in Article 23 of the directive on credit agreements for consumers, in the event, inter alia, of the failure to comply with the obligation to examine the creditworthiness of the consumer, laid down in Article 8 of that directive, must be carried out taking into account, in accordance with the third paragraph of Article 288 TFEU, (5) not only the provision adopted specifically in national law to transpose that directive, but also all the provisions of that law, interpreting them, so far as possible, in the light of the wording and objectives of that directive, so that those penalties meet the requirements laid down in Article 23 thereof.
Findings of the Court
First of all, the Court points out that, prior to the conclusion of a credit agreement, the creditor must assess the consumer’s creditworthiness. (6) The Court notes, in that regard, that the purpose of that obligation is to make a creditor accountable and to prevent that creditor from granting credit to consumers who are not creditworthy.
The Court interprets, next, Article 23 of Directive 2008/48, which provides, first, that the system of penalties applicable in the event of infringement of the national provisions adopted pursuant to that obligation must be established in such a way as to ensure that the penalties are effective, proportionate and dissuasive and, secondly, that the Member States are to take all measures necessary to ensure that they are implemented, the choice of penalties remaining within the discretion of the Member States. In that regard, the Court observes that, in addition to the penalty resulting from the Code of minor offences, Polish law provides for a number of other penalties, including civil penalties, which the national courts may impose in the event of failure to comply with the obligation to check a consumer’s creditworthiness. (7)
As regards, in the first place, the effectiveness and dissuasiveness of a fine provided for under Polish law, the Court points out that although a fine may, admittedly, constitute a dissuasive penalty, its low amount may nonetheless render that penalty inadequate and, above all, such a penalty is not capable of ensuring, in a sufficiently effective manner, the protection of consumers against the risks of over-indebtedness and insolvency, sought by the directive on credit agreements for consumers, if it has no effect on the situation of a consumer to whom credit was granted without assessing his or her creditworthiness.
However, the Court points out, in the second place, that a directive, while binding as to the result to be achieved upon each Member State to which it is addressed, leaves to the national authorities the choice of form and methods. (8) Consequently, in order to determine whether national legislation adequately implements the obligations resulting from a given directive, it is important to take into account not only the legislation specifically adopted for the purposes of transposing that directive, but also all the available and applicable legal rules. In that context, the Court clarifies that civil penalties, provided for in the Polish consumer protection legislation, must, in the light of the particular importance afforded to consumer protection by the directive on credit agreements for consumers, be implemented in compliance with the principle of effectiveness.
In the present case, as regards, first of all, the forfeiture of entitlement to interest, the Court recalls that that type of penalty, provided for by national legislation, must be regarded as proportionate, within the meaning of Article 23 of that directive, as regards cases of the creditor’s breach of a vitally important obligation in the context of that directive, namely the obligation to check a consumer’s creditworthiness.
As regards, next, the division of performance of the contract, the Court points out that this may allow the consumer’s situation to be taken into account and avoid exposing the consumer to particularly unfavourable consequences.
Lastly, in order to meet the requirements laid down in Article 23 of the directive on credit agreements for consumers, the Court states that the referring court may apply that directive in conjunction with the directive on unfair terms in consumer contracts, (9) in order, where appropriate, to reach the conclusion that terms relating to excessive charges are not binding on the consumer. In so doing, the referring court must ascertain whether the imposition of the penalty provided for by that latter directive is not less advantageous for the consumer than a simple penalty of forfeiture of entitlement to interest, provided for by the national legislation.