Last week the CJEU delivered its judgment in C-778/18 Association francaise des usagers de banque v Ministre de l'Economie et des Finances, interpreting Directive 2007/64 on Payment Services as repealed by Directive 2015/22366, Directive 2014/17 on Mortgage Credit and Directive 2014/19 on Payment Accounts.
This judgment answers a very interesting question on a practice that may be common in some Member States: is it compliant with EU law to require the transfer of consumers' income to the mortgage provider as a condition for approving their mortgage loan applications?
The facts
This claim was initiated by a consumer association representing banking clients. It sought annulment of the relevant French law implementing the above directives on grounds of misuse of power. The organization explained that the law disregards the objective of customer mobility pursued by the directives because it authorizes credit institutions to require consumers to deposit their salaries or other income with them and fixes the maximum period of 10 years for which consumers can ripe advantage of such deposited money irrespective of the amount, maturity and duration of the loan they were applying for.
The scope of Art. 12(2)(a) Directive 2014/17/EU
The CJEU was in effect faced with interpretation of the scope of Art. 12(2)(a) Directive 2014/17/EU. This provision provides an exception from the general rule of the Directive in Art. 12 that prohibits tying practices. The exemption in Art. 12(2)(a) provides creditors with an option to request from consumers or their family members to 'open or maintain a payment or a savings account, where the only purpose of such an account is to accumulate capital to repay the credit, to service the credit, to pool resources to obtain the credit, or to provide additional security for the creditor in the event of default'. Given this exemption, the CJEU noted that the obligation to deposit income is in principle consistent with the Directive (para. 54). However, the CJEU goes on to clarify that the exemption must comply with the requirements of proportionality, that is, it should provide account of the characteristics of the loan concerned, its amount, maturity and duration (para 56). Any different interpretation would jeopardize the achievement of the objectives of the Directive to provide a high level of protection for consumers, and to secure consumer mobility between banks, especially in circumstances when consumers wish to conclude a number of loans with different lenders. Tying them to a single bank would stand on the way of having an opportunity to shop around and make informed decisions for better deals. The CJEU therefore concluded that Art. 12(2)(a) must be interpreted to preclude national legislation that allows lenders to grant loans conditional on the deposit of all borrowers income on the payment account opened with the creditor (para 58). In regard to the duration of this obligation to have the account opened with the mortgage lender, the CJEU highlighted that the Directive does not provide any limitations as to the duration of the loan, and in principle therefore, this requirement is not inconsistent with the Directive, as long as the purpose of the deposit/account complies with the requirements set out in Art. 12(2)(a) (para. 61).
The meaning of ‘charges’ or ‘fees’ in Directive 2007/64, Directive 2015/2366 and Directive 2014/92
The second question raised in this case related to the meaning of 'charges' and 'fees' within Directive 2007/64, Directive 2015/2366 and Directive 2014/92. To promote consumer mobility and account switching, these rules provide consumers with a freedom to terminate framework contracts such as a current account contract without being liable to pay compensation in the form of fees or charges. French law however provides that if borrowers case to satisfy the income deposit requirement, lenders may terminate for remainder of the duration of the mortgage loan any individual advantages that were conferred on consumers, for instance, a better interest rate. The question infront of the CJEU was whether this denial of the benefit can be understood as a fee or charge within the meaning of the above directives. The CJEU ruled that it cannot.
Our evaluation
This judgment tackles a very interesting legal question. However, in addition to the bank account being extra security for the provided loan, another important aspect of transferring income in the mortgage provider bank is not considered in the judgment. Namely, not only that consumers' incomes provides additional security for banks that loans are going to be or at least they can be repaid, it also provides banks with additional data on customers. This enables banks to pull on a larger amount of data for profiling customers and monitoring their behavior. On the one hand, this may be beneficial for consumers, data could help banks to identify problems in repayment and income stream of the customer and address this with early intervention measures such as payment holidays. On the other hand, this additional information can help banks to provide new products to consumers that are tailored to their behavior and needs, that are arguably more likely to be taken by consumers than any products or services that does not suit them as much. The use of big data in banking is still in its infancy but having a bank account certainly provides extra opportunities for banks to get to know their customer, and represent a potential for extra profit. Perhaps this aspect could have also been taken into account in shaping the concept of fees and charges in the present context.
