On 26 March the CJEU published a judgment in a case Kreissparkasse (C-66/19), which was not accompanied by an opinion. The consumer in this case concluded a credit agreement secured by a mortgage. Four years after the conclusion of the contract, the consumer attempted to withdraw from the credit agreement, claiming that he has never received all the mandatory information from the credit provider and, therefore, the period to make use of his right of withdrawal has never started running. The contested matter was whether the mandatory information has indeed been provided and in a transparent enough manner, as the contract specified: "The borrower may withdraw from the contractual
obligation, without having to provide any reasons, within 14 days and
in writing (for example, by letter, fax or email). The period begins
after conclusion of the agreement, but not before the borrower has
received all mandatory information referred to in Paragraph 492(2) of
the [BGB] (for example, information concerning the type of loan,
information relating to the net loan amount, information concerning the
contractual term). …". Should the consumer know from the above contractual provision when the right of withdrawal starts running (and runs out)? Would he need to check the legal provisions of the German Civil Code to determine what information the credit provider should give him and ensure that he has received them all (and when)?
The CJEU is not a fan of placing such obligations on consumers. Article 10(2) of the Consumer Credit Directive obliges credit providers to give consumers transparent information on the right of withdrawal, incl. the period during which the right might be exercised and the conditions under which it may be used. The CJEU emphasises that this means that the consumer should be given transparent information on how the period of withdrawal is to be calculated (para. 38). It is insufficient for fulfilling this objective for the credit provider only to refer to the national provisions implementing the Credit Consumer Directive, stating that the right of withdrawal starts from the moment of the conclusion of the contract or when the consumer receives all the mandatory information, if the latter occurs later. "Where an agreement concluded by a consumer
refers to certain provisions of national law as regards information
which must be provided pursuant to Article 10 of Directive 2008/48, the
consumer is not in a position, on the basis of the agreement, to
determine the scope of his or her contractual obligations, check whether
all the required information, in accordance with that provision, is
included in the contract that he or she has concluded, or a fortiori
verify whether the period of withdrawal open to him or her has begun." (para. 44)
In case law under the Unfair Contract Terms Directive the CJEU has already specified that the traders are required to inform consumers about the content of the legal provisions they are referring to in the contract (Invitel and RWE Vertrieb) (paras. 46-47). This judgment applies the same reasoning to information that needs to be provided under the CCD.
