Friday, 10 June 2016

AG Sharpston in Home Credit Slovakia: in consumer credit, information is EU strategy, but MS have much to say

The Consumer Credit Directive (2008/48) mentions 22 items of information that must be specified in the credit agreement in a clear and concise matter (compulsory information). But what if these "items" are not specified in the contract's main document, which the consumer signs, but in the Terms and Conditions attached to that document? This was the main question brought to the ECJ by a Slovakian court.

According to AG Sharpston's opinion in Home Credit Slovakia, C-42/15, the requirement contained in the Directive (article 10) that the contract must be concluded on paper or other durable medium must be interpreted as referring to the way in which the consumer must be given the contract and does not establish a formal conclusion requirement. In other words, the provision wishes to secure that the consumer has the information available in a way which allows going back to it; it does not imply that the document should also be signed. This conclusion is reinforced by the fact that the Directive expressly states that it does not affect national rules establishing specific requirements for the conclusion of contracts. 

Under Slovakian law, it is possible to argue that the information would have to be provided in the same document which the consumer had signed. According to AG Sharpston, a similar requirement is not included by the Directive but also not precluded by it (para 48). It furthers the consumer protection aims pursued by the directive, while not excessively hindering the access to credit contracts. 

On the other hand, the AG continues, the Directive also allows the "compulsory information" to be conveyed on a document different than the main contract, provided certain conditions are in place which secure the consumer's possibility to read that document before the conclusion of the contract and know what relevant aspects of the contract would be regulated in the Terms and Conditions (para 52).

The answers to some of the other questions in the application were much more straightforward: where relevant, the consumer is entitled under the Directive to receive an amortisation table at request, but not necessarily at the moment of the conclusion of the contract; and the contract has to state the fequency of the repayments, but not the exact dates on which they fall due. 

A possibly more controversial issue, namely whether a national sanction which penalises the failure to provide the necessary information by deeming the credit interest-free would be proportionate, can according to the AG not be answered based on the information available to the court. However, as the AG has it, a substantial part of the information would probably have to be omitted in order to justify a similar sanction. 

The AG's answer to the first question seems to want to avoid the question of whether the word "contract" also needs to be given a specific meaning under the Consumer Credit Directive, to mean the main text given to the consumer. This is a comprehensible move, as the relationship between that "main" contractual document and the professional's terms and conditions is a mine field which, once entered, may prompt more questions than it would answer. However, the choice to concentrate on interpreting "on paper" and allowing the core information to be split among documents requires the AG to invent a whole series of conditions (see, again, para 52) which, albeit reasonable in the light of the Directive's aims, are entirely her own creation. One may wonder whether the Court will show more courage or will also opt for this safe, albeit inelegant, path.     

5 comments:

  1. I do not wholly agree with the notion of series of conditions in para 52 being AG's own creation. Those are basic requirements for a term to be considered incorporated into a contract. The requirements are similar in English common law, PECL (Art 2:209 and Art 2:104), or Slovak law (para 273 of Slovak Commercial Code). See https://en.wikipedia.org/wiki/Incorporation_of_terms_in_English_law

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    1. Hi, I just saw this comment. While I agree that requirements of this sort appear in many national legislations, the issue of incorporation is not dealt with by the Directive- which I am inclined to believe was an express move. In light of this, when the AG articulates the conditions for information transmission in a way so similar to incorporation rules, she's to my understanding entering a field which the Directive did not cover.

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    2. Re-reading the blogpost and both our comments I stand corrected - those requirements are outside the scope of the Directive and AG should probably have just referred to the national law. Although being common to many member states, in the context of the Directive they really were her own creation.Thanks for your reply.

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  2. please can you post the link, where I can find this document...I can not find it on curia...thanks Iva

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    1. http://curia.europa.eu/juris/document/document.jsf?text=&docid=179821&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=320406

      You're welcome.

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