Ernst Georg Radlinger and Helena Radlingerová v Finway a.s.

• Jurisdiction: European Union
• Celex Number: 62014CJ0377
• ECLI: ECLI:EU:C:2016:283
• Docket Number: C-377/14
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 21 April 2016

JUDGMENT OF THE COURT (Third Chamber)

21 April 2016 (*1 )

‛Reference for a preliminary ruling — Directive 93/13/EEC — Article 7 — National rules governing insolvency proceedings — Debts arising from a consumer credit agreement — Effective judicial remedy — Point 1(e) of the annex — Disproportionate amount of compensation — Directive 2008/48/EC — Article 3(l) — Total amount of credit — Point I of Annex I — Amount of drawdown — Calculation of the annual percentage rate — Article 10(2) — Obligation to provide information — Ex officio examination — Penalty’

In Case C‑377/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Krajský soud v Praze (Regional Court, Prague, Czech Republic), made by decision of 24 June 2014, received at the Court on 7 August 2014, in the proceedings

Ernst Georg Radlinger

Helena Radlingerová

v

Finway a.s.,

THE COURT (Third Chamber),

composed of M. Ilešič, President of the Second Chamber, acting as President of the Third Chamber, C. Toader (Rapporteur), F. Biltgen, E. Jarašiūnas and C.G. Fernlund, Judges,

Advocate General: E. Sharpston,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 15 July 2015,

after considering the observations submitted on behalf of:

— Mr Radlinger and Ms Radlingerová, by I. Ulč,

— Finway a.s., by L. Macek,

— the Czech Government, by M. Smolek, J. Vláčil and S. Šindelková, acting as Agents,

— the German Government, by T. Henze and D. Kuon, acting as Agents,

— the Polish Government, by B. Majczyna, acting as Agent,

— the European Commission, by M. van Beek, G. Goddin and K. Walkerová, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 19 November 2015,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation, firstly, of Article 7(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and of point 1(3) of the annex to that directive and, secondly, of Articles 10(2) and 22(2) of 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 1987 L 133, p. 66, and corrigenda OJ 2009 L 207, p. 14; OJ 2010 L 199, p. 40 and OJ 2011 L 234, p. 46) and point I of Annex I to that directive.

2 The request has been made in proceedings between Mr Radlinger and Ms Radlingerová (‘the Radlingers’) and Finway a.s. (‘Finway’) concerning debts arising from a consumer credit agreement which were declared in insolvency proceedings.

Legal context

EU law

Directive 93/13

3 Under Article 1(1), the purpose of Directive 93/13 is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.

4 In accordance with Article 3(1) of that directive, a contractual term which has not been individually negotiated is to be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. Article 3(3) of the directive states that ‘the annex [thereto] contains an indicative and non-exhaustive list of the terms which may be regarded as unfair’. In accordance with point 1(e) of the annex to that directive, terms which have the object or effect of ‘requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation’.

5 Under Article 4(1) of Directive 93/13: ‘Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.’

6 Article 6(1) of that directive is worded as follows: ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

7 According to Article 7 of the directive: ‘1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. 2. The means referred to in paragraph 1 are to include provisions whereby persons or organisations, having a legitimate interest under national law in protecting consumers, may take action according to the national law concerned before the courts or before competent administrative bodies for a decision as to whether contractual terms drawn up for general use are unfair, so that they can apply appropriate effective means to prevent the continued use of such terms. …’

Directive 2008/48

8 As stated in Article 1 thereof, Directive 2008/48 harmonises certain aspects of the Member States’ rules concerning agreements covering credit for consumers.

9 In accordance with Article 2(2)(a) of that directive, it does not apply, in particular, to ‘credit agreements which are secured either by a mortgage or by another comparable security commonly used in a Member State on immovable property or secured by a right related to immovable property’. Recital 10 to that directive states that although the scope of the directive is expressly defined therein, Member States may nevertheless apply its provisions to matters outside the directive’s scope.

10 In accordance with recitals 6, 7, 9, 19 and 31 to Directive 2008/48, the aims of that directive are, inter alia, to develop a more transparent and efficient consumer credit market within the internal market; to achieve full harmonisation while ensuring a high and equivalent level of protection for consumers throughout the European Union; to ensure that credit agreements contain all necessary information in a clear and concise manner, so as to enable consumers to make their decisions in full knowledge of the facts and to allow them to be aware of the rights and obligations under a credit agreement and that consumers have information relating to the annual percentage rates of charge (‘APR’) throughout the European Union, allowing them to compare those rates.

11 Furthermore, recital 43 to Directive 2008/48 states, inter alia, that, despite the uniform mathematical formula for its calculation, the APR is not yet fully comparable throughout the European Union. That directive therefore seeks clearly and comprehensively to define the total cost of a credit to the consumer.

12 Article 3 of Directive 2008/48, entitled ‘Definitions’, states as follows: ‘For the purposes of this directive, the following definitions apply: ... (g) “total cost of the credit to the consumer” means all the costs, including interest, commissions, taxes and any other kind of fees which the consumer is required to pay in connection with the credit agreement and which are known to the creditor, except for notarial costs; costs in respect of ancillary services relating to the credit agreement, in particular insurance premiums, are also included if, in addition, the conclusion of a service contract is compulsory in order to obtain the credit or to obtain it on the terms and conditions marketed; (h) “total amount payable by the consumer” means the sum of the total amount of the credit and the total cost of the credit to the consumer; (i) “[APR]” means the total cost of the credit to the consumer, expressed as an annual percentage of the total amount of credit, where applicable including the costs referred to in Article 19(2); ... (l) “total amount of credit” means the ceiling or the total sums made available under a credit agreement; …’

13 Article 10 of Directive 2008/48, concerning the information to be included in credit agreements, requires, in the first subparagraph of paragraph 1, that credit agreements are to be drawn up on paper or on another durable medium. Article 10(2) lists the items of information that must be specified in a clear and concise manner in any credit agreement. That list includes, inter alia: ‘… (d) the total amount of the credit and the conditions governing the drawdown; ... (f) the borrowing rate, the conditions governing the application of that rate and, where available, any index or reference rate applicable to the initial borrowing rate, as well as the periods, conditions and procedures for changing the borrowing rate and, if different borrowing rates apply in different circumstances, the abovementioned information in respect of all the applicable rates; (g) the [APR] and the total amount payable by the consumer, calculated at the time the credit agreement is concluded; all the assumptions used in order to calculate that rate shall be mentioned; (h) the amount, number and frequency of payments to be made by the consumer and, where appropriate, the order in which payments will be allocated to different outstanding balances charged at different borrowing rates...