Last week, the Court of Justice issued its decision in Home Credit Slovakia, C-42/15. We have already covered the AG's opinion on this case, which was largely followed by the Court. For this reason, the comment here is limited to the two most complex questions discussed and decided by the Court.
Background: the
Consumer Credit Directive (art 10.1) provides that “credit agreements shall be
drawn up on paper or other durable
medium”. It then makes a list of 22
elements of information which should be included in said agreements.
Slovakian law
requires credit contracts to be concluded “in writing”, which means that offer
and acceptance have to be signed. This contract to be concluded in writing has
to include all the elements mentioned by the consumer credit directive.
The facts of the
case are largely unremarkable, except for the fact that we know a few of the elements which the
Directive and Slovakian law require to be included in the contract were not
specified in the document signed by the parties, but only in the lender’s terms
and conditions .
The main
questions before the court of justice were:
- whether the directive requires all the information to be contained in a single document, ot whether it allows part of that information to be provided in a different document, aka the provider’s standard terms of business;
- whether a requirement under national law that all the information be included in one document- or that if part of the information is contained in a separate, unsigned agreement, the contract cannot have full legal effect - is precluded by the directive.
The AG had
discussed at length the Slovak translation of the Directive’s text, and had
ended up discussing separately the compatibility
of national legislation possibly imposing as well as not imposing the requirement that the information be all included
in a single document.
When discussing
expressly the possibility that national legislation allows for the information
to be split among different documents, the AG went on to explain (para 52 of
her Opinion) what conditions would make this acceptable in line of the
Directive’s requirements.
The Court does
not discuss much whether allowing the information to be split among different
documents is in line with the Directive, since “there is nothing in the Directive
to indicate that the credit agreements referred to in that provision must be
drawn up in a single document” (para 30).
The Advocate General found this potentially more problematic, and included the requirements
in her conclusions- there is no trace of the same nuance in the Court’s decision.
On the other hand, the Court is more explicit on the fact that the formal
requirements for the conclusion of a credit contract are left for the Member States to determine (para 39 ff), and avoids entirely the “single document”
issue- which allows them not to make any reference again to the relationship
between the standard terms and the text of the agreement. While the Advocate General assumed that the “in writing” obligation and the single document would
go hand in hand, the Court is suggesting a different interpretation- namely
that national laws could be seen to require that both the main text and the
standard terms should be signed by the consumer.
