Deferred payment option as a ‘promotional offer’: CJEU in bonprix (C-100/24)

In bonprix (Case C-100/24), the CJEU was asked to clarify the meaning of ‘promotional offers’ under Art. 6(c) of the E-commerce Directive. According to this provision, any such offers must clearly outline the conditions for eligibility. The disputed practice was an advertising message that bonprix, an online trading company, put on its website: ‘Convenient purchase on invoice’. It was contested that this message is misleading as it leaves out the fact that such a payment arrangement is subject to a prior assessment of the consumer’s creditworthiness. It is thus necessary to establish whether the message on bonprix’ website is a ‘promotional offer’ in the first place – a concept that is not directly defined under the Directive.

First, according to a literal interpretation, ‘promotional offers’ can include ‘any form of communication by which a provider seeks to promote goods or services to the recipient by giving him or her an advantage’ (para 24), which is still rather broad.

Second, according to a contextual interpretation, since Art. 6(c) of the E-commerce Directive included some illustrative examples such as ‘discounts, premiums and gifts’, for ‘reasons of consistency’, ‘promotional offers’ must have ‘the characteristics common to’ these examples (para 25). The CJEU outlined three such characteristics: the conferral of an advantage that is

1. objective, i.e. not left to ‘the subjective assessment of that recipient’ (para 26),
2.  certain, i.e. ‘does not depend on chance or selection’ (para 27, per the distinction between ‘promotional offers’ under Art. 6(c) and ‘promotional competitions and games’ under Art. 6(d)), and that is
3. ‘capable of influencing that recipient’s consumption behaviour’ (para 28).

In response to bonprix’ arguments, the CJEU added that ‘promotional offers’ are neither defined by ‘the existence of a substantial monetary advantage for its recipient’ nor by ‘its exceptional nature’ (paras 29-31). The form and extent of the advantage is ‘immaterial’ and may be ‘monetary, legal or mere convenience, such as to enable the recipient to gain time’ (para 32). In the context of the disputed practice, the CJEU highlighted some potential benefits of bonprix’ offer: the deferral of payment provides the consumer with ‘a cash advance’ and represents ‘a monetary advantage, albeit minimal’ (para 43); in the event of extinguishment of the contract due to withdrawal or termination, ‘the purchaser does not need to claim reimbursement of the price’ (para 44).

Third, according to a teleological interpretation, the CJEU confirmed that subjecting the disputed practice to Art. 6(c) of the E-commerce Directive can ‘contribute to a high level of consumer protection, without, however, entailing unreasonable economic burdens for service providers’ (para 34). By informing the consumer that the deferred payment option is subject to a creditworthiness test and thereby making the consumer realise that they may be refused the option, it ensures consumer protection ‘at all stages of contact between the provider and the recipient of a service’ (para 35). Finally, the CJEU also added that its interpretation of Art. 6(c) of the E-commerce Directive is fully compatible with the Unfair Commercial Practices Directive (particularly its Art. 3(4) and its general prohibition of misleading practices) and the Consumer Rights Directive (particularly its Art. 6(8)).

The Court’s broad interpretation of ‘promotional offers’ should be welcomed as a positive move to strengthen consumer protection through information. It represents a more inclusive understanding of the factors that drive consumers’ purchase decisions, in particular convenience. Of course, it should also be borne in mind that the disputed practice in this case is in any event a ‘commercial practice’ within the scope of EU law.

Ex-officio powers of national courts in enforcing Directive 2008/48/EC: the CJEU in C-679/18 OPR-Finance

Earlier today the European Court of Justice (CJEU) delivered its judgment C-679/18 OPR-Finance s.r.o. v GK on the interpretation of Articles 8 and 23 of Directive 2008/48/EC on Consumer Credit (CCD).

The facts

In April 2017 the consumer concluded a revolving credit agreement with OPR Finance for 192 EUR. After defaulting on payment of due installments, the creditor started enforcement action infront of the District Court of Ostrava (Czech Republic), claiming 307 EUR plus statutory interest. It appeared to  be clear for the referring court that OPR Finance did not claim they have assessed the consumers creditworthiness prior to granting the loan, and it was also clear that the consumer did not raise the objection of nullity  of the contract, the applicable penalty for failing to assess creditworthiness under Czech law.

The legal issues

The referring national court was unsure whether Article 8 on creditors obligation to assess consumers creditworthiness read in conjunction with Article 23 on the obligation of Member States to provide for effective, proportionate and dissuasive penalties for the breach of national provisions adopted pursuant to the CCD, provides for the national courts ex officio obligation to act i.e. obligation of national courts to examine on their own motion whether the creditors have complied with their obligation to assess consumers creditworthiness and ex officio obligation to apply the appropriate penalties provided by national laws.

At second instance, the national court asked whether the national provisions that provide for an obligation of consumers to raise the objection of nullity of the credit agreement within a 3 year time limit are contrary to the said provisions.

The ruling

The first question the CJEU answered positively, ruling that there is an ex officio obligation of national courts to examine whether creditors have complied with their obligation to assess consumers creditworthiness. Not only that national courts must assess ex officio whether the duty of creditworthiness assessment has been complied with but they should also apply the appropriate penalties ex officio, provided they are compliant with Article 23.

In its reasoning the CJEU referred to its previous case-law on establishing an obligation of national courts to rule ex officio on infringements of EU consumer law (para. 18), reinforcing the justification for such approach the weaker position of consumers vis-a-vis businesses in their contractual relationships (para. 19). It has also considered the importance of ex officio powers for achieving the objectives of the CCD. Importantly, it has highlighted that the purpose of Article 8(1) is to make creditors accountable for their lending decisions and to prevent them from providing consumers with unaffordable credit (para. 20). Moreover, the CJEU emphasized the importance of ex officio powers for the protection of consumers against the risks of over-indebtedness and bankruptcy and for the emergence of a well-functioning internal market in consumer credit with a high level of consumer protection (para. 21).

The CJEU further ruled that where national courts find the infringement of Article 8 on their own motion, they should also apply the appropriate sanctions without waiting for consumers to make applications to that effect, provided that national provisions on penalties are compliant with Article 23 and the associated CJEU on its interpretation (paras. 25-27). As mentioned above, under the applicable provisions of Czech law, the penalty of nullity of the contract only applied under the condition that consumers raised an objection of nullity within the limitation period of 3 years. The sanction of nullity itself relieved consumers from paying interest and associated costs to the credit, only requiring the repayment of the principle sum borrowed (para. 29). The CJEU examined the these requirements from the aspects of equivalence and effectiveness (paras. 32-33) and concluded that they are contrary to principle of effectiveness (para. 36). The said conditions make the sanction impossible or excessively difficult to operate in practice. Importantly, the CJEU dismissed the relevance of administrative penalties of competent supervisory authorities, emphasizing the separation of civil and administrative penalties for breaches of consumer credit law (para. 37), given that such penalties have no effect on harmed consumers, consumers to whom the credit was granted in the infringement of Article 8 of the CCD (para. 38).

Concluding thoughts 

This seems to be a well reasoned judgment that provides additional important protection for consumers against the risks involved in borrowing and raises the responsibility of creditors for complying with their obligation to assess consumers creditworthiness. It is now important that national courts follow the judgment and use their powers where appropriate.