Opinion of Advocate General Collins delivered on 16 February 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:107
• Date: 16 February 2023
• Celex Number: 62021CC0038
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

COLLINS

delivered on 16 February 2023(1)

Joined Cases C‑38/21, C‑47/21 and C‑232/21

VK

v

BMW Bank GmbH (C‑38/21)

and

F. F.

v

C. Bank AG (C‑47/21)

and

CR,

AY,

ML,

BQ

v

Volkswagen Bank GmbH,

Audi Bank (C‑232/21)

(Requests for a preliminary ruling from the Landgericht Ravensburg (Regional Court, Ravensburg, Germany))

(Reference for a preliminary ruling – Consumer protection – Mileage-based leasing agreement for a motor vehicle – Loan agreement for the purchase of a second-hand motor vehicle – Directive 2002/65/EC – Directive 2008/48/EC – Directive 2011/83/EU – Concepts of ‘off-premises contract’ and ‘distance contract’ – Involvement of an intermediary at the preparatory stage of the contract – Exception to the right of withdrawal in respect of a provision of car rental services – Absence of direct horizontal effect of a directive – Requirements of information to be included in an agreement – Presumption of compliance with the obligation to provide information when using a statutory model – Right of withdrawal – Initiation of the period of withdrawal in case of incomplete or incorrect information – Abuse of the right of withdrawal – Prior restitution requirement)

Table of contents

I. Introduction

II. Legal framework

A. European Union law

1. Directive 2002/65

2. Directive 2008/48

3. Directive 2011/83

B. German law

1. Civil Code

2. The EGBGB

III. The main proceedings and the questions referred for a preliminary ruling

A. Case C38/21

B. Case C47/21

C. Case C232/21

IV. Procedure before the Court

V. Analysis

A. Case C38/21

1. The fifth question in Case C38/21

2. The sixth question in Case C38/21

3. The seventh question in Case C38/21

4. The eighth question in Case C38/21

5. Interim conclusion

B. Cases C47/21 and C232/21

1. The first question in Cases C47/21 and C232/21

2. The second question in Cases C47/21 and C232/21

3. The fourth question in Cases C47/21 and C232/21

4. The fifth question in Cases C47/21 and C232/21

VI. Conclusion

I. Introduction

1. These requests for a preliminary ruling from the Landgericht Ravensburg (Regional Court, Ravensburg, Germany) arise in the context of a number of disputes between consumers and financial institutions linked to motor vehicle manufacturers. The cases before the referring court raise issues as to whether the withdrawal of consumers from, in one case, a mileage-based leasing agreement for a motor vehicle and, in the other cases, loan agreements intended to finance the purchase of a second-hand motor vehicle, is valid.

2. In accordance with the Court’s request, the issues the present Opinion will address include, first, the nature of a mileage-based leasing agreement in the light of Directive 2002/65/EC, (2) Directive 2008/48/EC, (3) and Directive 2011/83/EU. (4) In that context, the Court is also asked to interpret the concepts of ‘off-premises contract’ and of ‘distance contract’ for the purposes of Directive 2011/83, and to rule on the possible application of an exception to the right of withdrawal for which the latter directive provides. Second, the Court is invited to rule on three aspects of the obligation Directive 2008/48 imposes on creditors to provide consumers with information relating, inter alia, to the right of withdrawal. These are: the compatibility with that directive of national legislation that creates a legal presumption that the obligation to provide information is met by recourse to a model clause set out in national legislation (‘statutory model’); the consequences of providing incorrect or incomplete information for the start of the withdrawal period; and the possibility for a creditor to rely on the abusive exercise of the right of withdrawal by a consumer. Third, the Court is asked about the compatibility with the principle of effectiveness of EU law of certain consequences that national law attaches to a withdrawal from a credit agreement that is linked to a sales contract.

II. Legal framework

A. European Union law

1. Directive 2002/65

3. Article 1(1) of Directive 2002/65 describes the object of this directive as being ‘to approximate the laws, regulations and administrative provisions of the Member States concerning the distance marketing of consumer financial services’.

4. Article 2(a) of Directive 2002/65 defines ‘distance contract’ as ‘any contract concerning financial services concluded between a supplier and a consumer under an organised distance sales or service-provision scheme run by the supplier, who, for the purpose of that contract, makes exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’. Pursuant to Article 2(b) thereof, ‘financial service’ is ‘any service of a banking, credit, insurance, personal pension, investment or payment nature’.

5. Article 6(1) of Directive 2002/65 provides, inter alia, that ‘the Member States shall ensure that the consumer shall have a period of 14 calendar days to withdraw from the contract without penalty and without giving any reason’.

2. Directive 2008/48

6. Recitals 9, 10, 12, 30 and 31 of Directive 2008/48 read as follows:

‘(9) Full harmonisation is necessary in order to ensure that all consumers in the Community enjoy a high and equivalent level of protection of their interests and to create a genuine internal market. Member States should therefore not be allowed to maintain or introduce national provisions other than those laid down in this Directive. However, such restriction should only apply where there are provisions harmonised in this Directive. Where no such harmonised provisions exist, Member States should remain free to maintain or introduce national legislation. Accordingly, Member States may, for instance, maintain or introduce national provisions on joint and several liability of the seller or the service provider and the creditor. Another example of this possibility for Member States could be the maintenance or introduction of national provisions on the cancellation of a contract for the sale of goods or supply of services if the consumer exercises his right of withdrawal from the credit agreement. …

(10) The definitions contained in this Directive determine the scope of harmonisation. The obligation on Member States to implement the provisions of this Directive should therefore be limited to its scope as determined by those definitions. However, this Directive should be without prejudice to the application by Member States, in accordance with Community law, of the provisions of this Directive to areas not covered by its scope. A Member State could thereby maintain or introduce national legislation corresponding to the provisions of this Directive or certain of its provisions on credit agreements outside the scope of this Directive …

…

(12) Agreements for the provision on a continuing basis of services or for the supply of goods of the same kind, where the consumer pays for them for the duration of their provision by means of instalments, may differ considerably, in terms of the interests of the contractual parties involved, and the modalities and performance of the transactions, from credit agreements covered by this Directive. Therefore, it should be clarified that such agreements are not regarded as credit agreements for the purposes of this Directive. …

…

(30) This Directive does not regulate contract law issues related to the validity of credit agreements. Therefore, in that area, the Member States may maintain or introduce national provisions which are in conformity with Community law. …

(31) In order to enable the consumer to know his rights and obligations under the credit agreement, it should contain all necessary information in a clear and concise manner.

…’

7. Pursuant to Article 1 of Directive 2008/48 the purpose of the directive is ‘to harmonise certain aspects of the laws, regulations and administrative provisions of the Member States concerning agreements covering credit for consumers’. Article 2(1) of Directive 2008/48 provides that it shall apply to credit agreements. Article 2(2)(d) states that that directive shall not apply to ‘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’.

8. Article 3 of Directive 2008/48 defines a number of the terms used in that directive, including:

‘(c) “credit agreement” means 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, except for agreements for the provision on a continuing basis of services or for the supply of goods of the same kind, where the consumer pays for such services or goods for the duration of their provision by means of instalments;

…

(n) “linked credit agreement” means a credit agreement where

(i) the credit in question serves exclusively to finance an agreement for the supply of specific goods or the provision of a specific service, and

(ii) those two agreements form, from an objective point of view, a commercial unit; a commercial unit shall be deemed to exist where the supplier or service provider himself finances the credit for the consumer or, if it is financed by a third party, where the creditor uses the services of the supplier or service provider in connection with the conclusion or preparation of the credit agreement, or where the specific goods or the provision of a specific service are explicitly specified in the credit agreement.’

9. Article 10(2) of Directive 2008/48, that article being entitled ‘Information to be included in credit agreements’, provides, inter alia:

‘The credit agreement shall specify in a clear and concise manner:

…

(l) the interest rate applicable in the case of late payments as applicable...