Home Credit Slovakia a.s. v Klára Bíróová.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Safjan
• ECLI: ECLI:EU:C:2016:842
• Docket Number: C-42/15
• Date: 09 November 2016
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Third Chamber)

9 November 2016 ( *1 )

‛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’

In Case C‑42/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Okresný súd Dunajská Streda (District Court, Dunajská Streda, Slovakia), made by decision of 19 December 2014, received at the Court on 2 February 2015, in the proceedings

Home Credit Slovakia, a.s.

v

Klára Bíróová,

THE COURT (Third Chamber),

composed of L. Bay Larsen, President of the Chamber, M. Vilaras, J. Malenovský, M. Safjan (Rapporteur) and D. Šváby, Judges,

Advocate General: E. Sharpston,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 24 February 2016,

after considering the observations submitted on behalf of:

— the Slovak Government, by B. Ricziová, acting as Agent,

— the German Government, by T. Henze and J. Kemper, acting as Agents,

— the European Commission, by G. Goddin and A. Tokár, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 9 June 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 1, Article 3(m), Article 10(1) and (2), Article 22(1) and Article 23 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 2008 L 133, p. 66; corrigenda OJ 2009 L 207, p. 14; OJ 2010 L 199, p. 40; OJ 2011 L 234, p. 46, and OJ 2015 L 36, p. 15).

2 The request has been made in proceedings between Home Credit Slovakia, a.s. and Ms Klára Bíróová concerning a claim for payment of the outstanding amount of credit that that company had granted to Ms Bíróová in respect of which she was in default of payment.

Legal context

EU law

3 Recitals 7, 9, 10, 19, 30, 31 and 47 of Directive 2008/48 state: ‘(7) In order to facilitate the emergence of a well-functioning internal market in consumer credit, it is necessary to make provision for a harmonised Community framework in a number of core areas. … … (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. … (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. … … (19) In order to enable consumers to make their decisions in full knowledge of the facts, they should receive adequate information, which the consumer may take away and consider, prior to the conclusion of the credit agreement, on the conditions and cost of the credit and on their obligations. … … (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. Member States may regulate the legal regime governing the offer to conclude the credit agreement, in particular when it is to be given and the period during which it is to be binding on the creditor. If such an offer is made at the same time as the pre-contractual information provided for by this Directive is given, it should, like any additional information the creditor may wish to give to the consumer, be provided in a separate document which may be annexed to the Standard European Consumer Credit Information. (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. … (47) Member States should lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and ensure that they are implemented. While the choice of penalties remains within the discretion of the Member States, the penalties provided for should be effective, proportionate and dissuasive.’

4 Under Article 1 of that directive, headed ‘Subject matter’: ‘The purpose of this Directive is to harmonise certain aspects of the laws, regulations and administrative provisions of the Member States concerning agreements covering credit for consumers.’

5 Article 3 of the directive, headed ‘Definitions’, states in paragraph (m) thereof: ‘For the purposes of this Directive, the following definitions shall apply: … (m) “durable medium”: means any instrument which enables the consumer to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored; …’

6 Article 10 of the directive, headed ‘Information to be included in credit agreements’, provides: ‘1. Credit agreements shall be drawn up on paper or on another durable medium. All the contracting parties shall receive a copy of the credit agreement. This Article shall be without prejudice to any national rules regarding the validity of the conclusion of credit agreements which are in conformity with Community law. 2. The credit agreement shall specify in a clear and concise manner: (a) the type of credit; (b) the identities and geographical addresses of the contracting parties as well as, if applicable, the identity and geographical address of the credit intermediary involved; (c) the duration of the credit agreement; (d) the total amount of the credit and the conditions governing the drawdown; (e) in case of a credit in the form of deferred payment for a specific good or service or in the case of linked credit agreements, that good or service and its cash price; (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 annual percentage rate of charge 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 for the purposes of reimbursement; (i) where capital amortisation of a credit agreement with a fixed duration is involved, the right of the consumer to receive, on request and free of charge, at any time throughout the duration of the credit agreement, a statement of account in the form of an amortisation table. The amortisation table shall indicate the payments owing and the periods and conditions relating to the payment of such amounts; the table shall contain a breakdown of each repayment showing capital amortisation, the interest calculated on the basis of the borrowing rate and, where applicable, any additional costs; where the interest rate is not fixed or the additional costs may be changed under the credit agreement, the amortisation table shall indicate, clearly and concisely, that the data contained in the table will remain valid only until such time as the borrowing rate or the additional costs are changed in accordance with the credit agreement; (j) if charges and interest are to be paid without capital amortisation, a statement showing the periods and conditions for the payment of the interest and of any associated recurrent and non-recurrent charges; (k) where applicable, the charges for maintaining one or several accounts recording both payment transactions and drawdowns, unless the opening of an account is optional, together with the charges for using a means of payment for both payment transactions and drawdowns, and any other charges deriving from the credit agreement and the conditions under which those charges may be changed; (l) the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement and the arrangements for its adjustment and, where applicable, any charges...