Limitation periods and restitution after loan invalidity - three new CJEU Swiss-Franc mortgage judgments

To continue our reporting on CJEU judgments concerning unfair contract terms in mortgage credit contracts denominated in Swiss francs, let us look at three recent judgments in Polish cases, all delivered on 16 April. Each of these cases addresses the compatibility of national procedural rules governing limitation periods for banks' restitution claims following the invalidation of a credit agreement under the UCTD.

C-901/24 Falucka (see here)

In this case, the CJEU held that a consumer's declaration, made during preliminary proceedings for the invalidation of a loan agreement containing unfair terms, that they are aware of an obligation to repay the sums received from the bank, constitutes an acknowledgment of debt (para 44). National law may treat such an acknowledgment as interrupting the limitation period applicable to the bank's restitution claim (para 25). Consequently, the Court found that bank's legitimate interests (limited to reimbursement of the capital paid out - para 35) are protected where a loan agreement is invalidated after the limitation period for the bank's restitution actions has otherwise expired. This approach prevents consumer's unjust enrichment (para 36), without undermining the objectives of the UCTD.

C-752/24 Jangielak (see here)

Here, the CJEU confirmed the compatibility with EU law of a common procedural practice in Poland whereby banks bring counterclaims for restitution of capital paid under a loan agreement before the consumer's claim for invalidation on the grounds of unfair contract terms has been finally resolved (para 44). Bringing such counterclaims at an early stage may interrupt the running of the limitation period for the banks' restitution actions, thereby giving effect to the principle of equality of arms (para 36). However, the Court emphasised that this procedural possibility must not significantly hinder consumers in the effective enforcement of their rights. Accordingly, national courts should consider staying bank's restitution actions until the consumer's claims have been resolved (para 42). Moreover, procedural costs must not operate as a deterrent preventing consumers from further pursuing their rights under EU consumer protection law (para 42).

C-753/24 Rzepacz (see here)

Finally, Rzepacz addressed the question of whether a bank may reclaim the capital paid under an invalidated loan agreement where the limitation period for its restitution claim has already expired under national law. The CJEU acknowledged that exceptional circumstances may arise in which considerations of equity justify such recovery (para 37). Where national procedural rules exceptionally permit courts to disregard the expiry of a limitation period, such rules are not, as such, incompatible with the EU consumer protection framework (para 30). In applying those rules, however, national courts must rely solely on objective criteria. These may include the excessive length of proceedings concerning the invalidation of the loan agreement (para 29), the length of the limitation period, the time elapsed between its expiry and the submission of the claim, and the conduct of both parties during the proceedings (para 32). Further, national courts aiming for an equitable resolution must give due effect to the principle of effectiveness. This requires careful consideration of the impact of their decision on consumers' ability to enforce their rights without facing significant obstacles, e.g., being required to bear disproportionate court costs if proceedings are continued after the limitation period has expired (paras 33-35).

Early repayment and reduction in the total cost of mortgage loans C-76/22

Another interesting case tackled by the CJEU was C-76/22 QI v Santander Bank Polska S.A., focusing on Directive 2014/17/EC on Mortgage Credit (MCD) and the rules on the calculation of the reduction of the total cost of credit in case of early repayment. Although the judgment was delivered almost two years ago, it remains relevant as one of the few cases interpreting the MCD, and there has been no other case on the matter.

The consumer entered into a 36-month mortgage loan with the bank. However, the consumer fully repaid the loan within 19 months. At the time of granting the loan, the consumer paid a 2.5% commission on the amount borrowed, which was included in the total cost of credit. After full repayment, the consumer requested a refund of the portion of the commission paid corresponding to the remaining loan period (the period after full repayment). 

The bank claimed that the commission for granting the mortgage was a one-off payment and was therefore excluded from the obligation of refund, but even if it would be refundable, reimbursement should not be proportionate to the period covered by the early repayment in relation to the repayment duration initially agreed, but should be proportionate to the profit expected by the creditor.

Under scrutiny was Article 25(1) of MCD, according to which '[m]ember States shall ensure that the consumer has a right to discharge fully or partially his obligations under a credit agreement prior to the expiry of that agreement. In such cases, the consumer shall be entitled to a reduction in the total cost of the credit to the consumer, such reduction consisting of the interest and the costs for the remaining duration of the contract.

The CJEU was first asked to answer whether the one-off commission falls within the category of costs considered when calculating the reduction in the total cost of the mortgage credit. In answering the question, the decisive point for the CJEU was whether charges are regular payments and whether the amount of (one-off) payments is objectively linked to the duration of the contract. However, as the bank did not provide the relevant information to be able to answer the question, the CJEU reformulated the first legal question to: whether Article 25(1) MCD must be interpreted as meaning that, in the absence of information provided by the creditor enabling a national court to ascertain whether a commission charged when concluding a mortgage agreement falls within the category of costs that are independent of the duration of that agreement, that court must consider that such a commission is covered by the right to a reduction in the total cost of the credit referred to in that provision.

The CJEU noted that national courts must satify themselves that the costs imporsed by the consumer, irrespective of the duration of the credit agreement, do not objectively constitute remuneration of the creditor for temporary use of the capital which is the subject matter of that agreement or for services which, at the time of early repayment, had not yet been provided to the consumer (para. 33). Therefore, a national court cannot presume, solely on the basis that a charge was paid by the consumer in a single instalment when concluding the mortgage agreement, that that charge falls within the costs that are independent of the duration of the agreement, which therefore cannot result in a reduction in the total cost of the credit referred to in Article 25(1) (para. 34).

The CJEU ruled that in the absence of sufficient information, whether the costs are objectively linked to the duration of the contract or whether those costs are independent of that duration, and to ensure that the consumer is not adversely affected by that absence of information, the national court is required to find that the costs concerned are not independent of the duration of the contract and are, consequently, covered by the right to a reduction in the total cost of credit in Article 25(1) MCD, even if the costs were paid in a single instalment when the agreement was concluded.

By the second question, the CJEU was asked whether Article 25(1) requires a specific methodology for calculating the reduction in the total cost of credit.

The CJEU noted that there is nothing in the wording of the provision that would suggest that, and reiterated the purpose of Article 25(1), which guarantees that Member States will provide for the consumer's right to discharge fully or partially his or her obligations under a credit agreement prior to the expiry of that agreement. Secondly, in the event of early repayment, the consumer is entitled to a reduction in the total cost of the credit, which consists of the interest and the costs for the remaining duration of the contract. In this regard, Member States enjoy discretion, provided that the chosen methodology ensures a high level of consumer protection. 

The CJEU therefore ruled that there is no specific methodology for calculating the amount of the reduction in the total cost of credit referred to in Article 25(1).

This is an important judgment that sheds light on the way that the reduction in the total cost of credit in the event of early repayment should be calculated. It is also a warning to banks to be transparent about how their costs are calculated when communicating with all stakeholders, including courts. An interesting comparative point can be added: Article 29(1) of Directive 2023/2225 on Consumer Credit (CCD2) contains a similar provision that, in a way, seems to clarify the vagueness of the MCD and support the CJEU's position. According to Article 29(1) of CCD2, early repayment entitles consumers to a reduction in the total cost of the credit for the remaining duration of the contract. When calculating that reduction, all the costs imposed on the consumer by the creditor shall be taken into consideration.  The CCD2, therefore, refers to all costs, including all fees and commissions, regardless of how and when they were payable.

General information and a representative example in (mortgage) loan contracts C-85/24

The CJEU was given the opportunity to interpret Directive 2014/17/EU on Mortgage Credit (MCD) in C-85/24 Verein für Konsumenteninformation v BAWAG P.S.K. Bank für Arbeit und Wirtschaft und Österreichische Postsparkasse AG.  While mortgage loans are a frequent issue infront of the CJEU, the legal interpretation usually turns on Directive 1993/13/EC on Unfair Contract Terms. This is a rare chance, as far as I am aware, there are only two other cases tackling the MCD. While the judgment was delivered last year, it remains relevant, as there is no more recent case on the issue, and the new Directive 2023/2225 on Consumer Credit (CCD2) contains the exact provision in Article 9(2)(e).

The Austrian bank in dispute offers several credit products to consumers. It provides general information on the products, including in an information sheet. The Austrian Consumer Protection Association brought an action against the bank, asking the court to prohibit the bank from including, in the information sheet only an example of a variable rate credit agreement, without also providing an example of a fixed rate credit agreement and an example of a mixed rate credit agreement, since it offers those three types of interest rates for those credit agreements. The bank argues that the information sheet does not seek to provide consumers with detailed pre-contractual information tailored to individual cases and specific customers. In its view, it cannot be required that a separate example be included for every conceivable form of interest rate in that information sheet.

The legal question for the CJEU was whether Article 13(1)(g) of MCD must be interpreted as meaning that a creditor who offers credit agreements, whether or not secured by a mortgage, at a fixed interest rate, at a variable interest rate or with alternating variable interest rate and fixed interest rate periods, must provide a representative example for each of the three types of credit agreements offered?

Article 13 (1) of MCD entitled ‘General information’, provides ‘Member States shall ensure that clear and comprehensible general information about credit agreements is made available by creditors’. Such general information shall include at least the (g)  a representative example of the total amount of credit, the total cost of the credit to the consumer, the total amount payable by the consumer and the annual percentage rate of charge.

The CJEU noted that the MCD establishes a two-level mandatory information system. The first level consists of ‘general information’, referred to in Article 13 MCD. According to Recital 38, that information should enable consumers to make their decisions in full knowledge by ‘educating [them] in relation to the broad range of products and services available and the key features thereof. Consumers should therefore be able at all times to access general information on credit products available’. The second level of information consists of the ‘pre-contractual information’ in Article 14 MCD, which includes ‘the personalised information needed [by consumers] to compare the credits available on the market, assess their implications and make an informed decision on whether to conclude a credit agreement.’ Thus, the purpose of ‘general information’ is not to provide consumers with detailed explanations tailored to each type of credit agreement offered by the creditor and to each individual case; such explanations must be communicated to them under the ‘pre-contractual information’. They are intended only to inform consumers in the preliminary stage of their credit search.

The CJEU also addressed the question of what constitutes a representative example. In that regard, Recital 53 of MCD is helpful. It explains that ‘when determining the representative example, the prevalence of certain types of credit agreements in a specific market should be taken into account. It may be preferable for each creditor to base the representative example on an amount of credit which is representative of that creditor’s own product range and expected customer base, as these may vary considerably among creditors.’ The CJEU then clarified that ‘in assessing the representative nature of the example to be provided, some factors may be taken into consideration, namely, for example, the average duration and total amount of credit granted for the type of credit agreement under consideration and the prevalence of certain types of credit agreements in a specific market.’ Regarding the annual percentage rate of charge on the information sheet, the consumer's preferences and the information provided should, where possible, be taken into account, and the creditor or credit intermediary should make it clear whether the information provided is illustrative or reflects the preferences and information given. In any event, the representative examples should not contravene the requirements of Directive 2005/29/EC on Unfair Commercial Practices.

Using literal, contextual and teleological interpretations, the CJEU concluded that the practice of creditors who provide different types of credit products is compliant with the requirements of Article 13 Article 13(1)(g) of MCD if they provide by way of general information, only one example of the loans on offer, provided that that example is representative.

Fairness of indexing benchmarks in variable rate loans C -471/24

In a recent judgment delivered on 12 February 2026  in C-471/24 J.J.  v PKO BP S.A., the CJEU delivered further important interpretation on matters affecting loan contracts in variable rates. 

In this Polish case the consumer concluded a mortgage loan contract with variable rate of interest, which was calculated on the basis, first, of the WIBOR 6M benchmark, an interest rate benchmark, within the meaning of Article 3(1)(22) of Regulation 2016/1011, the value of which was set at 1.79% on the date of conclusion of that agreement, and, secondly, of a fixed margin of 1.85%, the applicable rate being adjusted to reflect changes in that index on a six-monthly basis.

As the consumer alleged the unfairness of the term, this gave new opportunities to the CJEU to interpret Directive 1993/13/EC on Unfair Contract Terms.

With the first question, the CJEU was asked whether the term setting out the variable rate of interest can be assessed for its fairness under Article 1(2), given the influence of Regulation 2016/1011, which would qualify a term as one that reflects ‘mandatory statutory or regulatory provisions’.  First, the CJEU importantly noted that although Article 1(2) relates to statutory or regulatory provisions of Member States and not EU law, as stated Recital 13 of the Directive the  'the provisions contained in acts adopted by the EU legislature in the form of regulations must be treated, in that regard, in the same way as the statutory and regulatory provisions of the Member States, in view of the effects of those regulations as laid down in the second paragraph of Article 288 TFEU, where such provisions of EU law seek, in the same way, to determine in a mandatory or supplementary manner the rights and obligations of the parties to certain contracts. The rationale for the exclusion established in Article 1(2) of Directive 93/13, …is, in principle, legitimate to presume that the national legislature struck a balance between all those rights and obligations, a balance which the EU legislature intended to preserve ... also applies where those rights and obligations are determined directly by the EU legislature itself.' (paras 73 and 74).

In answering the first question, the CJEU confirmed its earlier ruling in C-176/23 (see our report here), that '[a]rticle 1(2) must be interpreted as meaning that the exception provided for therein does not cover a term in a mortgage loan agreement stipulating a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, and a fixed margin, where the statutory or regulatory provisions applicable to such a term merely establish a general framework for the setting of the interest rate for such contracts, while leaving it open to the seller or supplier to determine the contractual benchmark or the fixed margin which may be added to the value of that index'. 

The second question related to whether a term in a mortgage loan agreement with a variable rate of interest based on a benchmark could be the main subject matter and, as such, exempted from the scrutiny of fairness based on Article 4(2).   According to Article 4(2) the assessment of the unfair nature of the terms may relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplied in exchange, on the other hand, in so far as those terms are in plain, intelligible language. The question, therefore, here was the interpretation of the meaning of plain and intelligible in this context; whether where a mortgage loan agreement contains a term stipulating a variable interest rate based on a benchmark, within the meaning of Regulation 2016/1011, the transparency requirement arising from that provision imposes on the creditor certain specific obligations to provide information as regards the methodology of that index. The claimant alleged that the bank did not provide reliable, intelligible and complete information concerning the risk associated with the application of a variable interest rate and the mechanism for determining the WIBOR 6M benchmark, in particular as regards the influence that the banks providing the input data which was used to set that benchmark; the banks participating in setting the benchmark, including PKO, could exert influence on the benchmark; the input data did not come from transactions actually carried out on the Polish interbank market, but of price offers made on that market, which conferred discretion on the contributors to the benchmark.

The CJEU reiterated its previous position that in this context the transparency requirement must be understood as requiring an average consumer, who is reasonably well-informed and reasonably observant and circumspect, is in a position to understand the specific functioning of the method used for calculating that rate and thus evaluate, on the basis of clear, intelligible criteria, the potentially significant economic consequences of such a term on his or her financial obligations (para 86). Moreover, compliance with the requirement of transparency must be assessed in light of all relevant facts, including not only the terms contained in the agreement concerned but also the promotional material and information provided by the lender during the negotiation  (para 87). Therefore, ‘[a]ccount should also be taken of the fact that the main elements relating to the calculation of a contractual reference index are easily accessible, on account of their publication, on condition that, in the light of the publicly available and accessible information and the information provided, as the case may be, by the lender, an average consumer, who is reasonably well informed and reasonably observant and circumspect, was in a position to understand the specific functioning of the method used for calculating the variable interest rate, in particular in so far as it involves a reference index, and thus to assess, on the basis of clear, intelligible criteria, the potentially significant economic consequences of such a term on his or her financial obligations (para. 88).

Moreover, in order to assess whether a term in a loan agreement which falls within the scope of Article 4(2) satisfies the requirement of transparency imposed by that provision, it is appropriate to take into consideration all the provisions of EU law laying down obligations relating to information for consumers which may be applicable to the agreement concerned. The CJEU then examined information duties in Directive 2014/17/EC and Regulation 2016/1011, and concluded that these read together, lay down precise obligations to provide information to consumers as regards, first the terms of mortgage loan agreements setting a variable interest rate referring to a benchmark covered by that regulation and, second, the benchmarks, and that those obligations are divided between the creditors and the administrators of those benchmarks (para 101). The CJEU concluded that ‘the transparency requirement arising from Article 4(2) does not impose on the creditor certain specific obligations to provide information as regards the methodology of that benchmark. The fact that the creditor has complied with all the obligations to provide information imposed on it by Directive 2014/17 in respect of such a term and, if it has provided additional information, has not provided any information giving a distorted picture of that benchmark is such as to establish that that creditor has satisfied that requirement of transparency as regards that term.’

The third question called for interpretation of Article 3(1) in this context, according to which a contractual term which has not been individually negotiated is to be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. The question here was whether the very way the benchmark is determined renders the term substantively unfair. The claimant argued that the way the benchmark is determined allows PKO to influence the benchmark and, in turn, the borrower's interest payable. The banks thus afford themselves a ‘hidden margin’ (para 107).

The CJEU noted that Regulation 2016/1011 contains a set of detailed provisions on benchmarks, including the provision of input data, in particular as regards the nature of those data and their reliability, and the use of those benchmarks. Consequently, ‘the use, in a mortgage loan agreement, of a benchmark which, at the time that agreement is concluded, may be regarded as complying with the requirements of the framework established by Regulation 2016/1011, in particular as regards its methodology, in the light of the control provided for by that regulation, cannot, in principle, be, in itself, such as to create, to the detriment of the consumer, a significant imbalance in the parties’ rights and obligations, notwithstanding the fact that the creditor is one of the banks which provide the input data used by the administrator of that index to determine its successive values’ (para. 129).

The answer to the third question is that Article 3(1) must be interpreted as meaning that, 'the lack of information on the part of the consumer concerning certain specific features of the contractual benchmark, in particular the fact that its methodology provides for the use of input data which does not necessarily correspond to actual transactions and the fact that the creditor is one of the banks contributing to the determination of that index' - those specific features themselves are not such as to render that term unfair, provided that that index could be regarded as consistent with that regulation at the time of the conclusion of that contract.

Legislation based contract amendments and the review of unfairness C-176/23

On 30 May 2024, the CJEU delivered C-176/23 UG v Raiffeisen Bank SA an important judgment that is highly relevant today and covers an important and not frequently adjudicated question - the issue of the mandatory terms exception in Article 1(2) and the way it applies in the highly regulated environment of a consumer loan contract. Based on the 'contractual terms which reflect mandatory statutory or regulatory provisions ... shall not be subject to the provisions of this Directive.’

In this case, the consumer entered into a variable-rate credit agreement with Raiffeisen Bank, indexed to the Swiss franc. Based on the Romanian mandatory legislation OUG No. 50/2010, the term relating to the determination of the variable rate had to be amended so that it was linked to an objective index increased by a margin fixed for the entire duration of the agreement. Unsatisfied with the new interest rate, the consumer sued the bank, alleging that the term was unfair.

The first legal question before the CJEU was whether the term could be assessed for fairness, given that it was inserted into the contract as required by mandatory legislation. Given that the term was not a copy-paste of a legislative provision, but rather an action based on the legislation, the CJEU addressed whether the term reflected mandatory rules.  In answering the question, the CJEU ruled that, in this situation, the term can be assessed for fairness because the legislation was not overly prescriptive and left the bank a degree of discretion to determine the variable interest rate. In the words of the CJEU, the ‘legislation merely establishes a general framework for fixing the interest rate for that agreement, while leaving a margin of discretion to that seller or supplier as regards both the choice of reference index for that rate and the size of the fixed margin that can be added to the latter.’ This approach was confirmed by the CJEU in its latest case on the matter C-471/24 PKO BP (see our report here).

The second question raised a question of whether such an amended term is not assessable for fairness under the general test of fairness in Article 3(1) even if it has been inserted into the contract without a negotiation with the consumer? The CJEU provided an expected answer to this question, confirming that this is the case, given that the entire UCTD, including the test of fairness, is designed to protect against unfair individually non-negotiated terms, and some terms are exempted from the security of fairness, against that default provision. Although the second question is somewhat unusual and, at first glance, seems redundant, it raises an interesting question about the hierarchy among the provisions of the UCTD. Indirectly, the CJEU here seems to confirm the natural reading of the UCTD that Article 1(2) prevails over Article 3(1), in the sense that the term must first be within the scope of the UCTD to be assessable for fairness. Conversely, if a term is exempted from the scrutiny of the test of fairness by virtue of Article 1(2), this cannot be remedied by Article 3(1). 

Overall, the judgment provides an important contribution to EU consumer law and to the interpretation of the relationship of legislative interventions imposing mandatory rules on the contracting parties and the UCTD. These are relevant in the post-2008 environment, which incentivises legislative intervention in matters that would previously have been left to the parties (see more on this relationship here).

Reconsideration or entrapment? Possible abuse of withdrawal rights under CRD, CJEU C-564/24

Over the past few days, one case has kept coming up in professional conversations which we have not covered so far - namely, Eisenberger Gerüstbau v JK (C-564/24), decided on 5 March, a new case concerning possible abuse of withdrawal rights. 

Facts and questions

In the case at hand, JK, the customer, had concluded a contract with Eisenberger Gerüstbau, a provider of scaffolding for building projects, to support the renovation/expansion works to be undertaken at a building owned by the consumer herself, for private purposes. The contract had been concluded with the assistance of an architect, who had drafted it as instructed by the consumer. The trader had signed the contract without making any changes. Signatures had been finalised in December 2020.

The scaffolding had been subsequently installed and held in place over a period of almost 12 months, during which the consumer had regularly paid a number of bills by the trader. In December 2021, when all the works for which the scaffolding had been indispensable had been concluded, the consumer indicated her wish to withdraw from the contract and demanded that all the money she had paid – close to 100 000 euros – be returned to her. The ground for her claim was that the trader had not informed her of her rights to withdraw from the contract, which would then be automatically extended from 14 days to 12 months and 14 days. The trader rejected the request and sued the consumer for the unpaid parts of the bill; the consumer counter-sued. 

 

The questions before the CJEU concerned two different aspects on which the referring court doubted on the way in which EU consumer law may apply to the case: first (questions1-3), whether the contract at hand (and modifications thereto) should be considered a distance contract for the purposes of article 2(7), Consumer Rights Directive, a necessary precondition for the application of the right to withdraw. Second (question 4), in case the contract had to be considered a distance contract under the relevant rules, whether in the case at hand the trader could legitimately claim that the consumer had exercised their right of withdrawal in a way that is contrary to good faith. 

 

The second issue was particularly laden (see para 37) as a result of a previous CJEU decision which had given pause to many practitioners, namely C-97/22. In that case, the court had upheld the right to withdrawal (and restitution of any expenses) for a consumer who had exercised their right after the contract had been fully performed. Could a different conclusion be reached in this case?

 

Reasoning and answers

As concerns the first question, the Court considered the three main elements that constitute the definition of “distance contract” under article 2(7) CRD, namely:” “any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded”. One of these aspects – the exclusive use of distance means of communication - seemed to be uncontroversial. Two, however, deserved closer scrutiny. First: was the customer acting as a consumer? The referring court seems to consider that if the consumer uses the services of a professional intermediary, they may not necessarily be considered a consumer in the relationship to third party providers hired through such intermediaries. The Court’s answer to this is relatively succinct, in so far as it concludes, relying on the AG’s opinion, that “a consumer was assisted by a trader, in the present case an architect, in the context of the negotiation and conclusion of a contract between that consumer and another trader, is not such as to call into question the weaker position […] of that consumer vis-à-vis that other trader, even though the trader who assisted that consumer took the initiative to establish the contact between that consumer and the other trader and influenced the content of that contract”. This may be a dubious reasoning as no effort is made to show why the use of a professional intermediary should not affect the presumption that a consumer “must be deemed to be less informed, economically weaker and legally less experienced” [para 44] than their counterparty. 

 

Perhaps unexpectedly, the CJEU has more doubts as to whether the contract in question should be considered as concluded “under an organised distance sales or service-provision scheme”. From the description of the negotiation, it is clear that the contract was concluded exclusively by means of distance communication, but not that the trader themselves had set out any “organised” scheme for such distance negotiations. In that sense, the CJEU concluded that it is up to the national court to decide whether the contract was a distance contract under article 2(7) of the CRD. 

 

The answers to the previous questions made it still meaningful to answer the question concerning whether the consumer could be considered to be exercising their right of withdrawal against good faith. In this sense, the Court reaches to its own case-law on the notion of “abuse of right”, which is known to be very demanding and as such helps the CJEU distinguish this case from the one decided in C-97/22. The Court first observes that it has in the past held that “the application of eU legislation cannot be extended to cover transactions carried out for the purpose of fraudulently oer wrongfully obtaining advantages provided for by EU law”. This is the case when it can be shown that first, “despite formal observance of the conditions laid out by the EU rules, the purpose of those rules has not been achieved”, and, additionally, “a subjective element consisting in the intention to obtain an advantage from those rules by artificially creating the conditions laid down” for obtaining that advantage. The Court refers here to its own Grand Chamber judgment of 21 December 2023, BMW Bank and Others (C-38/21, C-47/21 and C-232/21, paragraph 285), which concerned potentially abusive exercise of the “eternal” right of withdrawal in consumer credit agreements. 

 

The threshold imposed by these requirements is, in essence, high enough that it could overcome not only the general demands of a high level of consumer protection but also the punitive elements inherent in the specific rules at hand, which extend the right of withdrawal by 12 months when consumers have not been informed of this specific right. 

 

In this sense, the Court reasons, it is not enough to observe that a consumer has exercised their right of withdrawal towards the end of the extended withdrawal period. However, additional facts specific to this case may be relevant; in particular, the referring court may consider the fact that the contract was “concluded on the basis of a draft prepared under the sole responsibility of the consumer by an agent of her choice, in accordance with the information given by the latter as regards the precise services expected from the trader, which that trader then signed without making any amendments”[para 78]. This could suggest that the objective element of the abuse test – formal observance of the rules undermining the objective of those same rules – may be met. 

 

The circumstances of the case, the CJEU concludes, may further suggest that the subjective element of the test has also been met – the timing of the invocation of the RoW, right between the conclusion of the necessary parts of the work and the expiry of the 12-month window to exercise her right of withdrawal constituting a potentially relevant factor.

 

Some preliminary thoughts

The second question/answer discussed above is the main reason why the judgment has drawn some attention within legal circles. While similar implications could be drawn from the 2023 car lease cases, those cases were so steeped in a specific discussion and litigation saga that it was not immediately clear how broadly the CJEU may be willing to generalise the applicability of the abuse doctrine in consumer law. This case, of course, doesn’t answer this question either, being ultimately still about withdrawal rights. It does, however, help us make some tentative distinctions. First, abuse of withdrawal rights is more than the somewhat disproportionate exercise of said rights. It requires an ex ante dimension of creating a situation which gives rise to potential legal consequences, and at least explicit awareness of this dimension. This means, second, that the “windfall” a consumer enjoys when profiting from a trader’s mistake is not equivalent to abuse. This makes sense, in particular, in light of the Court’s consistent position that such consequences are both meant to provide consumers effective remedies and sanction the traders for non-compliance, thereby incentivising compliance. 

 

The previous question may get less attention, but I do want to reflect on two aspects that I find notable: first, I mentioned above that the reasoning with which the Court denies that the presence of an intermediary may mean the customer may not quality  as consumer under (in particular) the CRD does not sound particularly convincing. If we go with the Court’s own recalling that consumers must be assumed to be weaker in terms of knowledge, financial means and and legal savvy, it seems that – contrary to what the Court claims – the presence of a professional intermediary would by definition intervene to mitigate some of these asymmetries. An intermediary will likely be hired precisely to provide additional knowledge and (contract-specific) legal experience, and their involvement may even mean that the consumer has sufficient investment in the contract that they may be financially almost comparable to an entrepreneur. At the same time, while the reasoning may be weak (pun not too intended), it seems wise of the Court not to open up to broader questions about when the presence of an intermediary may matter to someone’s consumer capacity. This seems like a question that, if at all, should be properly addressed by legislatively set exceptions. The case-by-case appreciation of the role of the intermediary finds a more limited, and hence arguable more appropriate, role in the assessment of the potential abuse. Second, I find it interesting that the Court proposes a rather strict interpretation of the “organised scheme” element in the definition of a distance contract, suggesting that situations in which the trader does not systematically work online/through means of distance communication may not be automatically drawn under the application of the more demanding CRD requirements for distance contract by the mere conclusion of the contract by means of distance communication. 

C-526/24 Brillen Rottler: when does exercising your GDPR rights become abusive?

Have you ever tried to find out who is processing your data and exercised your right under Article 15 GDPR? It is a useful transparency tool for data subjects – who are in many circumstances consumers as well, for instance when subscribing to an online newsletter or creating an account with an e-commerce platform. Based on this right, you can obtain from a data controller (often a company in a B2C relationship) confirmation of whether your personal data are being processed, and if so – for whatpurposes, which categories of data, who has received access to them, etc. You can also request a copy of your data.

Some individuals, however, exercise this right not to verify the lawfulness of data processing, but to “provoke” a situation in which a refusal – or any procedural shortcoming – will trigger a compensation claim under Article 82 GDPR. This is precisely what the case C-526/24 Brillen Rottler GmbH & Co. KG v TC is about.

The facts are relatively simple: an individual subscribed to the newsletter of Brillen Rottler, a family-run optician company based in Arnsberg, Germany, by voluntarily entering his personal data on the company's website. Thirteen days later, he submitted a request for access to his personal data under Article 15 GDPR (paras. 12–14). Brillen Rottler refused to comply, arguing that the request was abusive, because press reports, blog posts and lawyers' newsletters showed that the individual systematically subscribed to newsletters from various companies, then submitted access requests and subsequently filed claims for compensation (para. 15). The data subject denied any abusive intent and claimed compensation of at least EUR 1,000 for non-material damage resulting from the refusal itself (para. 16).

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The Local Court of Arnsberg, before which the dispute was brought, referred several questions to the Court of Justice for a preliminary ruling (para. 20). In essence, it asked: first, can a first access request already be considered "excessive" within the meaning of Article 12(5) GDPR, and if so, under what conditions? Second, does the right to compensation under Article 82 GDPR extend to damage caused not by unlawful processing of data, but by a wrongful refusal to act on an access request? And third, can the causal link required under Article 82 be broken by the data subject's own conduct?

What did the CoJ find?

On the "excessive" first request (questions: 1-3, 7)

The Court confirmed that even a first access request – not just a series of repeated ones – may, in certain circumstances be regarded as "excessive" within the meaning of Article 12(5) GDPR, and thus refused. However, it stressed that this exception must be interpreted strictly. The concept of "excessive requests" is inherently exceptional, and there must be strict criteria for characterising a first request as such. Crucially, the burden of proving that excessiveness lies explicitly with the controller (para. 35). It is not enough to point to a pattern of behaviour visible in public sources – for instance, that the individual has submitted similar requests and claims to multiple controllers. Such information may be taken into account, but only if it is supported by other relevant material (para. 43). What is required is a combination of two elements: objective circumstances showing that "despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved"; and a subjective element "consisting in the intention of the data subject to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it" (para. 36).

In practical terms, the controller must demonstrate unequivocally that the access request was not made to become aware of, or verify the lawfulness of, the data processing, but solely to create a ground for compensation (para. 41). In making that assessment, the court should look at all circumstances of the case: did the data subject provide their data voluntarily and without any obligation? What was the purpose of doing so? How much time elapsed between the data submission and the access request? And how did the data subject behave throughout (para. 42)? 

On the scope of compensation under Article 82 GDPR (questions 5-6)

The second issue concerned a broader question: does Article 82(1) GDPR – which grants compensation for "damage resulting from an infringement" of the GDPR – cover situations where the damage stems not from the processing of personal data as such, but from a controller's wrongful refusal to respond to an access request?

The Court answered in the affirmative. It reasoned that many of the rights enshrined in Chapter III of the GDPR – including the right of access, rectification, erasure, restriction, and portability – by their very nature produce infringements through refusals to act, rather than through any particular act of processing (para. 51). If compensation under Article 82 were limited exclusively to damage caused by unlawful processing, the rights of data subjects laid down in Chapter III would be significantly weakened and the effectiveness of the provision undermined (para. 53). In other words, the Court opted for a broad interpretation of Article 82(1), consistent with its literal wording, which covers damage resulting from any "infringement of this Regulation" not merely from unlawful data processing as such.

On causation – and the data subject's own conduct (question 8)

The third and most practically significant finding concerns the causal link. Even where a GDPR infringement is established and damage is claimed, compensation is only available if the data subject demonstrates actual harm and a causal link between that harm and the infringement. That link is a condicio sine qua non of any claim under Article 82(1) (para. 66).

Critically, the Court held that the causal link may be broken by the data subject's own conduct – provided that conduct proves to be the determining cause of the damage (para. 65). Where a person has voluntarily provided their data to a controller with the specific aim of artificially creating the conditions for a compensation claim, the resulting loss of control over data or uncertainty as to their processing cannot be attributed to the controller. The data subject cannot then claim compensation for harm that was, in substance, the result of their own deliberate decision (para. 66).

Final remarks

The Brillen Rottler case is not a revolution. The Court builds on what it has already established in Österreichische Datenschutzbehörde (C-416/23), FT (C-307/22), and Österreichische Post (C-300/21), but takes it one step further. What is new is the clarity – a first access request can be abusive, the causal link in compensation claims can be broken by the data subject's own conduct, and Article 82(1) GDPR covers more than just unlawful processing. The CoJ tries to be fair to both sides – the data subjects and data controllers. 

It also comes at an interesting moment. In November 2025, the Commission published the Digital Omnibus proposal (COM(2025) 837 final), which among other things touches on the GDPR's right of access. Recital 35 of that proposal states that "the right of access, which is from the outset favourable to data subjects, should not be abused in the sense that the data subjects abuse them for purposes other than the protection of their data", and gives as an example a situation where "the data subject intends to cause the controller to refuse an access request, in order to subsequently demand the payment of compensation, potentially under the threat of bringing a claim for damages". The reformulated Article 14(5) of the GDPR (see Art. 4(4) of the proposal) would allow controllers to refuse requests that are "manifestly unfounded or excessive, in particular because of their repetitive character" - while keeping the burden of proof on the controller. The Court's reasoning and the Commission's proposal clearly point in the same direction. Whether the final legislation will look anything like the current draft is, of course, another question.

Commission opens official DSA investigation into SHEIN

 While the announced Digital Fairness Act proposal remains so far at the announcement stage, the last few months have brought to light the DSA's potential - if yet to be tested - to contribute to consumer protection beyond content moderation practices. In this sense, it particularly interesting that this month the European Commission has announced an official investigation into Shein's practices concerning several potential violations, namely:

- potential failure to limit the sale of illegal products, "including content which could constitute child sexual abuse material, such as child-like sex dolls";

- potential failure to monitor systemic risks linked to addictive design "including giving consumers points or rewards for engagement", and adequacy measures that Shein has in place in order to mitigate negative effects on "users' wellbeing and consumer protection"; and 

- potential failure to achieve sufficient transparency of the recommender systems in the platform. 

The press release does not provide a detailed legal basis for the specific elements, so we did this for you. 

First, illegal content. Under the DSA, platforms do not have to actively monitor for the presence of illegal content (article 6), but they have have several obligations that are triggered once a notice is filed (article 16 para 4,5,6), and they are assumed to be legally aware of the illegal content once a valid notice has been filed (art 16 para 3). The commission has previously asked Shein to provide information about how they manage their notice & action systems to counter illegal content and the investigation is meant to obtain further insight. 

"rewards for engagement" from couponfollow.com

Second, as concerns the systemic risks, the Commission's framing seems to leverage the understanding of "risk" (assessment, art 34 and mitigation, art 35) referred to in recitals 81 and 83, namely that of addictive features of a platform's design or exploitation of weaknesses, in particular when it comes to children. The gamification mechanisms mentioned in the investigation announcement may structurally encourage consumers to over-spend or just spend more time in the app that normal usage would require. 

Finally, the Commission wants to know more about how Shein informs consumers about the criteria according to which product presentation is organised and selection is ranked. According to art 27 DSA, this information can be provided in the platforms T&Cs *but* "when several options are available" users must be given the a directly and easily accessible option to choose among these alternatives. The Commission here also indicates that users should be provided with *at least one easily accessible option that is not based on profiling* for each recommender system. This requirement does not follow directly from the DSA but seems in line with the requirements for consent under the GDPR (as it seems unlikely that a webshop would be able to rely on a different legal basis for the profiling). 

We do not know how long this investigation will take - the press release makes it clear that the Commission doesn't want to commit to a specific timeline. Of course, the outcome in this file may have broader implications for DSA enforcement and consumer protection, so we will be following (and sharing) any developments with great interest!

Dutch court upholds Fortnite fine for UCPD violations

 While the "Digital Fairness Act" may or may not become a thing in the near future, it is interesting to see how regulators have started to perhaps gain more confidence in the enforcement of existing rules in the digital context. A most recent example comes from a Dutch decision published today in Epic Game's case against the Dutch Authority for Consumer and Market's decision to fine the Fortnite producer for a number of prohibited practices embedded in the game. 

According to the ACM, Epic Games exposed children to advertisements which directly exhorted them to buy a product (a banned practice under the UCPD's annex) and put them under pressure to decide about a complex and unclear offer within a short time (para 1 decision).

Epic Games had earlier accepted parts of the ACM's decision, in so far as it concerned timers in the Item Shop that created the false impression that an item or offer may soon run out or disappear. They challenged, however, 1) the existence of exhortation to purchase directed at children, as well as 2) the ACM's claim that the game's Item Shop was designed in such a way to create artificial scarcity, putting players under pressure to decide within a short period of time whether to buy certain items. 

As to the first point, this hinged on the interpretation of the text in the annex. From the judgment it appears that Epic Games wanted the District Court to decide on the ACM's assumption that "children" in the UCPD's annex covers all minors, which was challenged on the basis that it failed to differentiate between young children and older teenagers. The court considers that this distinction may matter for the amount of the fine but not for the question of whether the finding of an infringement was justified and hence declines to examine the issue in detail since Epic Games has not challenged the entity of the fine. Even without a detailed examination, this element in the decision may in fact embolden authorities, which have found it tricky to claim that practices constituted direct exhortation to buy directed at children whenever a product was not exclusively marketed to very small children. There was otherwise relatively little in the decision that tried to suggest that the practices at stake (see picture, from decision) did not constitute direct exhortation to purchase.

As to the second point, the ACM (see decision para 17 and sub-paras) was relying not on a direct prohibition but on a savvy reading of the general prohibition of unfair practices which go against "professional diligence" and distort the average consumer's decision making (art 5 UCPD). In this respect, the Court says, the ACM has understood professional diligence through "the principles and international rules on ethical design such as transparency and the avoidance of damaging or misleading design". The ACM also claims that professional diligence requires abstaining from exploiting behavioural pitfalls of consumers through so-called "dark patterns".  In particular, lack of transparency about the offer was due to a mix of several elements:  items potentially disappearing from the item shop, lack of information about the items' significance within the game and their rarity (which all connected to their price), all combined with time pressure (because the Item Shop content was refreshed every 24 hours), made it difficult for consumers/children to decide without excessive pressure. The Court has accepted the ACM's analysis and characterisation of the practice, rejecting Epic Games' contention that the analysis relied on the wrong test. 

A final challenge concerned the burden of proof: did the ACM need to prove that the concerned practices had actually influenced the behaviour of children as a result of the factors that its analysis identified? The Court finds that no proof has to be provided of actual influence: it is sufficient that the analysis makes it sufficiently plausible (aannemelijk) that these effects would occur. Among other things, the court points to ACM relies on research reporting that 37% of the kids playing the concerned version of the game (namely, Battle Royale) do make in-game purchases and that significant numbers of children who make in-game purchases regret their choices afterwards (see decision para 21.1). 

The confirmed fine amounts to 1.1 million euros. It is clear from the points raised in the case that Epic Games was here seeking to establish a principled precedent against the ACM's interpretation of the UCPD and their recent steps in digital enforcement. This may suggest that the decision will be appealed - which we should know within a few weeks. Interesting case in any event!

Customs duties and contracts: AG Ćapeta clarifies Article 5 CRD (C-488/24)

Photo by Imre Tomosvari on Unsplash

Last Thursday, AG Ćapeta delivered her opinion in Kigas (C-488/24), which primarily addresses the scope of information obligations under Article 5 of the Consumer Rights Directive. In this case, a consumer arranged for the transport of goods, such as motorcycles and washing machines, from Norway to Lithuania using a small transport company. They agreed price for the service was EUR 450. Based on the facts, both parties were taken by surprise when the shipment was stopped at the Swedish border and customs duties of approximately EUR 3,900 were imposed. The transport company paid these charges, delivered part of the shipment to the consumer, and withheld the remainder until the consumer reimbursed the customs payment. This raised the key question: Who bears the cost of customs duties when the contract is silent on the matter and how far service providers' duties to inform (about the main characteristics of the service and the price) stretch in this respect? 

The first part of AG's reasoning is unsurprising. It is evident that the potential payment of customs duties is one of the main characteristics of a contract for the international carriage of goods. After all, the physical transport of goods across borders requires carriers to ensure successful passage through border and customs checks (as reflected in para 62 of the opinion). Since Article 5(1)(a) CRD obliges traders to provide consumers with information on the main characteristics of the service prior to the conclusion of the contract, the carrier should indeed have informed the consumer that customs duties might be payable. 

The referring Lithuanian court views this a broader interpretation of the concept of an international carriage of goods contract (para 52), but in light of the CRD's objective, such an interpretation appears necessary (para 54). 

Based on the facts outlined in the opinion, this seems to have occurred in practice. There is mention that an employee of the carrier raised the issue of customs duties with the consumer, and that the consumer reassured them that no duties would be payable (para 7).

This brings us to the second part of the opinion: how detailed should the duty to inform be? Is the carrier obliged to verify whether customs duties will apply, identify the documents required by customs authorities, and estimate the potential charges? AG Ćapeta concludes that the scope of this duty depends on the nature of the carriage contract (para 67). If the carrier undertakes to act on consumers' behalf regarding customs - effectively concluding a brokerage agreement, they must liaise with the consumer on the specific documents required and provide an advance estimate of customs charges (para 72). AG Ćapeta acknowledges that custom tariffs for international carriage are not always predictable or fixed, but this does not absolve the carrier from providing a reasonable estimate and examples of applicable tariffs (para 76).

If, however, as in the present case, the contract is narrower in scope and limited to transportation, the carrier's information are correspondingly limited (para 82). This reflects the operational constraints faced by smaller carriers and the complexity of verifying the customs status of each item transported. Nevertheless, as AG notes (para 68), the carrier must inform the consumer, prior to contract formation, whether brokerage services are offered and who will be responsible for customs formalities. I agree that this enables consumers to make an informed choice, either to contract with the carrier or seek one that provides brokerage services (para 69). 

However, even smaller carriers occupy a stronger transactional and informational position than consumers, given their experience and repeated engagement in this market. Therefore, more should be required of them than merely stating that customs compliance is the consumers' responsibility. At a minimum, carriers should inform consumers of the types of documents typically required by customs, such as proof of the value of the goods. This duty does not extend to providing an exhaustive and detailed list of documents (para 88). Where brokerage service are not included, the carrier is not obliged to incorporate customs tariffs into the service price (para 89).

Overall, I find AG Ćapeta's opinion well-reasoned, striking an appropriate balance between consumer and trader interests. The applicability of Article 5 CRD is clear, but the scope of information duties often remains ambiguous under EU consumer law. Linking this scope to the breadth of the service provided is a sensible step towards greater legal certainty. Accordingly, where brokerage services are included, custom tariffs should be treated as part of the price to be disclosed, and carriers should assume greater responsibility for obtaining relevant information. Where brokerage services are absent, consumer should be clearly informed that they bear responsibility for customs compliance. Consumer protection objectives are nonetheless upheld if carriers remain obliged to guide consumers on the documents likely to be required and to warn them in advance that customs duties may apply.