Thursday, 19 November 2015

AG Sharpston in Radlinger v Finway: EU law requires ex officio control of respect of information requirements

Today, an interesting opinion has been released enriching the CJEU literature on unfair terms and credit contracts. In this case, the referring court had asked several questions concerning Czech procedural rules on insolvency proceedings as well as some questions concerning the interpretation of Directive 93/13 and Directive 2008/48 on consumer credit agreements.

The "procedural" questions more strictly related to directive 93/13 are answered in a way that corresponds to previous decisions by the ECJ. We will skip discussing them. The questions concerning the assessment of penalty clauses are very techincal, so it seems better to wait for the CJEU to answer them (in other words, it is not clear whether the AG actually answered the questions asked by the referring court). 

An interesting novelty attached to this case, however, concerns information duties. According to the Advocate General, courts must be able to assess ex officio whether the information requirements set out by the Consumer credit directive have been fulfilled. 
The advocate general invokes the well-known reglections which have led to the imposition of ex officio with regard to "certain provisions of EU consumer protection legislation" (para 52), since (as stated in Faber)
"there is a real risk that the consumer, particularly because of a lack of awareness, will not rely on the legal rule that is intended to protect him". 
The finding that the supplier has failed to meet its information duties might have important consequences for the consumer, for instance it might entail the application of a different interest rate- that is, if the national legislation provides for adequate remedies. When these remedies are not provided, however, a similar obligation seems to burden courts without helping consumers much. What do you think? 

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