Friday, 10 July 2015

Unfair terms and the rights of co-debtors as consumers: Bocura v Bancpost (C-348-14)

In a decision published yesterday, the ECJ clarified and reaffirmed a few points concerning the relationship between the information duties established under the Consumer Credit Directive ("old" version, or 87/102) and the Unfair Terms Directive (93/13). 

It also made clear- which should not come as a surprise- that a natural person assuming the role of co-debtor within a consumer credit contract, for reasons not pertaining to her professional activity, should be considered a consumer under both directives. As a consequence, such co-debtor is entitled to receiving all the information that the Consumer Credit Directive requires lenders to provide to consumers.  

The interesting consequence is that, for the ends of assessing whether certain terms contained in a credit contracts should be considered as sufficiently clear and comprehensible, the co-debtor's position should also be taken into account. In particular, in order to assess whether the terms in that contract satisfied the transparency requirement irrespective of the fact that they did not mention certain elements that Directive 87/102 considers as essential information, the consideration of whether "the set of elements liable to have an incidence on the extent of her commitment" has been duly "communicated to the consumer" should, it seems, include the co-debtor's position

The decision is, as usual, available on the Court's website (currently only in French and Romanian).

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