Today, the Court of Justice of the EU delivered its judgment in the case of CA Consumer Finance v Bakkaus and Bonato, concerning the pre-contractual obligations of credit providers. For a summary of the facts of the case, I refer to an earlier blog post on AG Wahl's opinion in the case ('Evidence of disclosure in consumer cases').
In line with the AG's opinion, the Court places the burden of proof of having fulfilled pre-contractual information duties on the credit provider. Moreover, the credit provider cannot shift the burden of proof to the consumer through a standard term.
The Court rules:
'1. The provisions of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC must be interpreted to the effect that:
– first, they preclude national rules according to which the burden of proving the non-performance of the obligations laid down in Articles 5 and 8 of Directive 2008/48 lies with the consumer; and
– secondly, they preclude a court from having to find that, as a result of a standard term, a consumer has acknowledged that the creditor’s pre-contractual obligations have been fully and correctly performed, with that term thereby resulting in a reversal of the burden of proving the performance of those obligations such as to undermine the effectiveness of the rights conferred by Directive 2008/48.
2. Article 8(1) of Directive 2008/48 must be interpreted to the effect that, first, it does not preclude the consumer’s creditworthiness assessment from being carried out solely on the basis of information supplied by the consumer, provided that that information is sufficient and that mere declarations by the consumer are also accompanied by supporting evidence and, secondly, that it does not require the creditor to carry out systematic checks of the veracity of the information supplied by the consumer.
3. Article 5(6) of Directive 2008/48 must be interpreted to the effect that, although it does not preclude a creditor from providing the consumer with adequate explanations before assessing the financial situation and the needs of that consumer, it may be that the assessment of the consumer’s creditworthiness means that the adequate explanations provided need to be adapted, and that those explanations must be communicated to the consumer in good time before the credit agreement is signed, without this, however, requiring a specific document to be drawn up.'