Access to basic payment accounts and a duty to prevent money laundering - the CJEU in C-81/24 Jenec

Earlier this month, the CJEU delivered a judgment in C-81/24 LH v OTP Banka d.d., the case known as 'Jenec'. This is the first case on the interpretation of  Directive 2014/92/EU on access to payment accounts with basic features (PAD), and in particular Article 16, which provides a right of access to basic bank accounts.

 

The question referred to the CJEU by the Slovenian Okrajno sodišče v Mariboru asked whether Article 16(4) of PAD read in the light of Directive 2015/849 or the Fourth Anti-Money Launderng Directive (4AMLD), may be interpreted as authorising Member States to require banks to reject a consumer’s application to open a payment account with basic features on the ground that he or she is included in a list of the Office of Foreign Assets Control (OFAC) of the United States Department of the Treasury. 

 

This essentially required tackling the question of how the right to access payment accounts with basic features or basic bank accounts can be reconciled with the bank's duty to comply with anti-money laundering rules, and weighing two important policy goals, the financial inclusion of consumers, who have no other payment account, which is a cornerstone of financial inclusion,  and the aim to prevent the use of the EU financial system for the purposes of money laundering and terrorist financing.

 

We have earlier reported on  Advocate General Richard de la Tour's Opinion in the case. The AG was of the opinion that Article 16(4) of PAD must be interpreted as meaning that a banking institution may not refuse to open a payment account with basic features solely on the ground that the name of the consumer applying to open such an account is on the OFAC, unless, the applicable national law expressly provides for such a more stringent approach, given the minimum nature of the directives.

 

The CJEU acknowledged that the right of the consumer to open a basic bank account is dependent on compliance with the provisions relating to the prevention of money laundering and the countering of terrorist financing, and therefore that the AML rules must be considered when assessing whether or not the bank can refuse to open a basic bank account (para. 39). It has also established that 4AMLD does not provide that inclusion on an OFAC list or on any other list of that type drawn up by a third country automatically prohibits a bank from establishing a bank-customer relationship (para 45). The CJEU noted that, instead of a blanket exemption, 4AMLD adopts a risk-based approach and requires banks to conduct customer due diligence. Inclusion of a person on an OFAC list or on any other list of that type may constitute a relevant risk factor that the bank is required to take into account in its individual assessment of the risk of AML (para 51). However, it cannot be the only reason for the account's refusal.

 

The CJEU concluded that PAD must be interpreted as not permitting Member States to require banks to refuse to open a basic bank account for a consumer for the sole reason that that consumer is included on a list of persons subject to restrictive measures imposed by a third country, unless the bank has carried out an individual assessment of the risk of money laundering or terrorist financing connected with the intended business relationship. 

 

This is an important judgment that strengthens the consumers’ right of access to basic bank accounts. Banks may be overly cautious in complying with AML rules for fear of very stringent sanctions, prioritising AML compliance. It is therefore important to clarify what exactly AML compliance requires in this context. Otherwise, consumers, those who are vulnerable and in the most need of an account, might often be denied access to an account by reliance on AML provisions, whether or not such denial would be effectively justified from a risk-based perspective.

Financial inlcusion and access to payment accounts with basic features: the current state of play in the EU

Financial inclusion, or access to affordable and useful financial services, is essential for our modern-day living. Access to payment accounts or bank accounts is a cornerstone of financial inclusion. It enables access to other essential services, such as receiving salary or pensions, social benefits, paying rent, making purchases at more favourable rates, paying bills, and accessing other financial services, including credit. Basic bank accounts move consumers from unbanked to banked.

The importance of basic bank accounts is recognised by the EU. Directive 2014/92 on the comparability of fees related to payment accounts provides a right to access payment accounts with basic features (Article 16), laying down minimal rules for Member States on providing access, ensuring affordability and raising awareness. 

While the objective of the Directive is to facilitate access to basic bank accounts across the EU, the 2023 Report from the European Commission on the application of Directive 2014/92 and the 2024 report from Finance Watch on Breaking down barriers to basic payment accounts suggest the Directive falls short of meeting its objective. 

The Finance Watch study relied on mystery shopping to provide a real picture of what is happening in the EU, based on examples of selected Member States, Spain, Germany and Romania. It has been found that:

• Basic bank accounts are often not affordable, e.g. in Germany, fees can reach up to £150, and in Spain, basic bank accounts are more expensive than standard accounts;

• These accounts are frequently not accessible; e.g. banks often impose documentary requirements such as a work contract, which then leaves out the unemployed, a poof of address that prevents homeless people from accessing these accounts. Often, these accounts cannot be opened online, and banks fail to offer them proactively; instead, consumers are pushed to ask for these accounts, explaining their own vulnerability;

• Perhaps most shockingly, the study shows little awareness of basic payment accounts. Bank staff are often unaware of these accounts or their eligibility, and there is little and hard-to-access information that consumers can access themselves.

Ten years after the adoption of the Directive, many, often the most vulnerable groups, are prevented from accessing these accounts.  According to the World Bank Findex (which has no data for Luxembourg), in 2021, 3.6% of Europe’s population were financially excluded. The highest number is recorded in Romania, where 30.9% of the population aged 15 or more did not own a bank account. They are followed by Bulgaria (16%), Hungary (11.8%), Croatia (8.2%), Portugal (7.4%), Cyprus (6.87%), the Czech Republic (5.6%), etc. 

These recent results signal the need for a more robust European legal regulatory framework that strengthens the above duties of access, affordability and awareness, and a need for better enforcement of the existing national rules.

Information duties in consumer credit: the CJEU in C-677/23

At the end of January, the CJEU delivered another judgment interpreting Directive 2008/48 on Consumer Credit. In C-677/23 A. B., F. B. v Slovenská sporitel’ňa a.s. consumers alleged that the credit contract did not contain all the necessary elements provided by the Directive. The dispute thus involved the interpretation of Article 10 (2), which provided the mandatory content for the credit contract. Two subparagraphs came under scrutiny in this case.

Duration of the credit agreement

One problem was that the credit contract did not provide for its entire duration. However, it did lay out the number of instalments to be paid. Under Article 10(2)(c), the credit agreement shall specify clearly and concisely the duration of the credit agreement. The question for the CJEU, therefore, was whether it is sufficient to comply with this provision by indicating the number of instalments. 

 

The CJEU concluded that since the duration of a credit agreement is closely linked to the performance of the parties' contractual obligations “the indication of the duration of the credit agreement, in accordance with Article 10(2)(c) of Directive 2008/48, does not necessarily have to be made through a formal indication of the precise date on which that agreement begins and ends, provided that its terms enable the consumer to determine that duration without difficulty and with certainty” (para. 43).

Assumptions used in the calculation of the APRC

The second question considered by the CJEU was about interpretation of Article 10(2)(g) according to which the credit agreement shall specify in a clear and concise manner “the [APRC] and the total amount payable by the consumer, calculated at the time the credit agreement is concluded; all the assumptions used to calculate that rate shall be mentioned." The wording in the contract was the following: "The credit has been granted immediately, in full; the borrower shall fulfil his or her obligations under the terms and conditions and within the time limits set out in the credit agreement; the interest rate shall apply until the end of the credit relationship". Another part of the contract provided that “the agreement shall be concluded for a … fixed period until the full settlement of all relationships arising in connection with the credit granted". The consumers considered these unclear. 

 

The CJEU considered the purpose of the provision and asserted that it is aimed at making the consumers aware of their rights and duties (para. 58). Moreover, reference to the assumptions must enable consumers to verify whether the APRC has been calculated correctly and, if not, to assert their rights, particularly the right of withdrawal, the period of which is extended in case of breach of Article 10 (para 59). Reference to the assumptions should also enable consumers to exercise their other rights provided by national legislation, including sanctions for non-compliance, which in this case, under the applicable Slovakian law, meant that the credit is interest-free (para 59). 

 

The CJEU concluded that assumptions used for the calculation of APRC are "vitally important" for consumers (para. 61), which meant that the "the assumptions used to calculate the APRC must be expressly mentioned in the credit agreement and that it is not sufficient in that regard that the consumer may himself or herself identify them by examining the terms of that agreement" (para. 64).

Concluding thoughts 

 

This judgment reinforced the importance of consumer information for the enforcement of consumer rights. Whilst it is questionable to what extent assumptions in the calculation of APRC are understandable for individual average consumers with no legal and financial background even if they are expressed in clear and precise language, the CJEU rightly held that if information is scattered around the contract and not expressed clearly and straightforwardly it is even more difficult to consumers to comprehend the effect and consequence of the terms of their contract. This judgment is, therefore, a further push towards clearly structured and worded contracts that at least give consumers a chance to understand their rights and duties and enforce their rights accordingly.

The judgment continues to be relevant under the new Directive 2023/2225 on Consumer Credit, which contains the scrutinised provisions in Article 21(1)(d) and (g).

Artificial intelligence in financial services - new report by Finance Watch

Today, Finance Watch, a non-profit association dedicated to reforming finance in the interest of European citizens, published a new report: 'Artificial intelligence in finance: how to trust a black box?' authored by its Chief Economist Thierry Philipponnat.

As AI-powered systems increasingly drive financial decision-making in areas such as creditworthiness assessments, insurance pricing and investment products, the report asserts that the core principles of financial regulation accountability, responsibility, and transparency are being tested.

Against this backdrop, the report identifies several critical concerns: 

• Lack of transparency: AI models operate as “black boxes”, generating outputs without clear explanations of their reasoning, making human oversight and intervention impossible.
• Consumer protection under threat: In retail finance, the deployment of AI could lead to opaque creditworthiness assessments (see for an example here), pricing discrimination, discriminatory lending, and misleading financial advice. 
• Supervisors face AI challenges: Supervisors tasked with enforcing regulation face challenges in keeping pace with financial institutions' deployment of AI and delivering on their mandates.
• Market stability is at risk: Increasingly dependent on third-party AI providers, financial institutions face operational risks from unregulated external systems and concentration risks, where a handful of dominant AI firms control critical models and infrastructure, creating systemic vulnerabilities. 

As a response, the report urges a reassessment of the financial regulation framework: 

1. Expand the scope of the AI Act to cover all financial services
2. Establish a clear liability regime that holds providers of AI-powered services accountable for damages caused by an output of an AI system
3. Conduct a regulatory gap analysis to ensure all AI-driven financial activities are adequately regulated.

Reversed burden of proof under strict conditions to exercise early repayment rights of consumer credit- the CJEU in C-326/22

Case C-326/22 Z  arose regarding Article 16(1) of Directive 2008/48/EC on consumer credit and the right to early loan repayment, which provides consumers with a right to repay their loan early and to the costs of the loan reduced accordingly.

The facts

Six consumers assigned to Z their claims regarding 15 consumer credit contracts that were repaid early, who intended to claim the total cost of credit reduction. However, under the applicable Polish law, Z needed to prove the claim's existence, which could have been only done by reference to the contract, but the consumers did not have the contract anymore. Consequently, Z requested access to the contracts, which the bank refused, saying there was no legal duty to do so. However, the referring national court rightly noted that the absence of such duty of the bank would lead to a contrary result to Article 16(1), which may, as in this case, effectively make the right to cost reduction unenforceable.

The legal question

The referring Polish court asked the CJEU whether Article 16(1), read in the light of the principle of effectiveness of EU law, must be interpreted as meaning that a consumer may request, from the creditor, a copy of that agreement and information concerning the repayment of the credit not featured in the contract when this is necessary to verify the calculation of the sum owed by the creditor connected to the early loan repayment right and for allowing that consumer to bring an action for the recovery of that amount.

The ruling

The answer was not apparent from the wording of Art. 16 (1). However, the CJEU noted that in interpreting the provisions of EU law, it is necessary to consider not only the wording but also the context of the provision and the objectives it aims to pursue, which is, achieving a high level of consumer protection.

Crucial is paragraph 26:

In that regard, it is relevant that Article 16(1) of Directive 2008/48 implies that the consumer is entitled to a reduction in the total cost of the credit, such reduction consisting of the interest and the costs for the remaining duration of the agreement, without needing to adduce evidence other than that of the early repayment of the credit. It follows that it is for the creditor to provide the information necessary to establish the amount of the reduction in the total cost of the credit to which the consumer is entitled.

If the information is unavailable in the contract, the creditor must provide that information to the consumer where it is necessary to calculate the amount owed by the creditor (para 27).

The CJEU ruled that Article 16(1) must be interpreted as meaning that a consumer may request, from the creditor, a copy of that agreement and all information concerning the repayment of the credit not featured in the agreement itself which is necessary for verifying the calculation of the sum owed by the creditor under the reduction in the total cost of the credit due to its early repayment and for allowing the consumer to bring a possible action for the recovery of that amount.

The approach was justified by the banks' duty to provide information to consumers via Article 10, which ensures a high level of consumer protection. This duty includes information to be incorporated into the contract and a copy of the agreement provided to the consumer. A credit agreement must be drawn up on a durable medium that should enable the consumer to easily access and store the information provided.

Our analysis 

This rare interpretation of Article 16 follows the only case so far (Lexitor). A seemingly very technical judgment on access to documents turns into a decision that establishes an important legal principle. The court effectively reversed the burden of proof in exercising the rights connected to early loan repayment. Depending on how we define the burden of proof, this might not technically be a reversal of the burden. However, it is based on the same idea of easing the burden of proof. This is based on an understanding that the consumer cannot access the documents and that this access is an essential condition for realising the consumer's rights. The judgment is a significant development, given that the burden of proof was only previously reversed in connection to Article 5 -providing evidence that the creditor complied with pre-contractual information duties (CA Consumer Finance). However, the reversal of the burden of proof here has important limits. It only applies when:

1)    the consumer does not have a copy of the credit agreement or if the agreement does not contain the relevant information, and

2)  the information is necessary for verifying the calculation of the sum owed by the creditor to reduce the total cost of credit due to its early repayment, and

3)   the information is necessary to allow the consumer to take action to recover the sum owed by the creditor. 

The question is whether the judgement will have a broader effect of reversing the burden of proof regarding Article 10 more generally. This seems to be the direction, but it is yet to be confirmed by further CJEU judgments. 

Financial services concluded at a distance in digital age - the new Directive 2023/2673

In 2023, European lawmakers were busy improving the protection of consumers in financial services. In addition to the new Directive 2023/2225 on consumer credit (on which we reported here), the regime distance marketing of financial service was also revamped. The new Directive 2023/2673 on financial services contracts concluded at a distance repeals the current Directive 2002/65/EC. The Directive entered into force on 18 December 2023, Member States are obliged to implement it by 19 December 2025 and apply the rules from 19 June 2026.

The 2023 Directive was driven by the need to ensure consumer confidence and trust in digital transactions. This need was underscored by the rapid development of digitalisation and the evolving means of distance communication, which have revolutionised how we use technology since the creation of the 2002 Directive. Digitalisation has also changed how products are marketed to consumers, with new products emerging in the online environment.

The other rationale was the progressive introduction of other sector-specific legislation that significantly overlapped the current, 2002 Directive, creating legal uncertainty.

The 2023 Directive clarifies its nature as a horizontal, general instrument that remains a safety net for matters not covered by other EU instruments or subject to exemptions. The Directive is a maximum harmonisation instrument and applies only to contracts concluded at a distance. Importantly, it amends Directive 2011/83/EU, which currently does not apply to financial services.

The Directive follows the current information approach to consumer production, detailing pre-contractual information duties and making the associated right of withdrawal more effective by mandating an easy-to-find 'withdrawal function' on the service provider online interface that should be continuously available during the withdrawal period. In laying down the rules on adequate explanations, the 2023 Directive adds the right to request human intervention when the trader uses online tools such as chatbots. 

Finally, the 2023 Directive recognises the realities of the online world and the difficulties in making informed decisions, thus protecting consumers against dark patterns or deceptive design patterns.

The new directive is a welcomed development of EU consumer law. It is based on the realities of the digital world and aims to tackle the most pressing problems for consumer decision-making.

What will the new Directive 2023/2225 on consumer credit bring to consumers?

Last week the new Directive (EU) 2023/2225 on consumer credits (new Directive) was published in the official journal. The new Directive comes 15 years after the current 2008/48/EC Directive (CCD) that has been only partially effective due to the wording of the CCD itself and the developments linked to digitalisation, the practical application and enforcement in Member States as well as from the fact that certain aspects of the consumer credit market are outside the scope of the current CCD. The new Directive follows the Proposal published at the end of June 2021. Most of the key major changes highlighted in our comment on the Proposal have stayed in the final text.

The new Directive is expected to bring major improvements to consumers in the following areas:

·       Scope (Article 2)- the new CCD now includes very small loans (no lower limit) and interest-free loans - so-called buy now pay later products.

·       Better pre-contractual information - mode detailed rules on information to be included in credit advertisements (Article 8) and the introduction of general information (Article 9)

·       Introduces rules on advisory services (Article 16)

·    Regulates common unfair practicing rules on fair, clear, and not misleading communication in advertising and marketing (Article 7), tying and bundling practices (Article 14)

·       Contains more detailed rules on creditworthiness assessment (Article 18)

·       Introduces information rules on contract modification (Article 22)

·     Require Member States to introduce measures to prevent the excessive charging of borrowing rates, the annual percentage rate of charge, and total cost of credit (Article 31)

·    Lays down professional standards in the ways creditors treat consumers from manufacturing products to executing/performing contracts (Conduct of business rules - Article 32) and requirements for knwoledge and competence for staff of creditors (Article 33) 

·   Requires Member States to support financial education on responsible borrowing and debt management (Article 34)

·       Introduces European rules on arrears and forbearance (Article 35)

·       Contains more detailed rules on credit intermediaries (Article 37, 38)

·       Contains rules on competent authorities (Article 41).

New consumer rights:

One of the rationales for the adoption of the new Directive was market developments in digitalisation that were not foreseen at the time when the CCD was adopted. The rapid technological developments registered since the adoption of CCD have brought significant changes to the consumer credit market such as the emergence of new products and the evolution of consumer behaviour and preferences (Recital 4). The new Directive acknowledges these changes by various measures. To this effect, the new Directive acknowledges that a durable medium can be a machine-readable document (Recital 34), and introduces new consumer rights. When consumers are presented with offers based on automated processing of personal data, consumers have a right to be informed on this in a clear and comprehensible way (Article 13). When the creditworthiness assessment involves the use of automated processing of personal data, consumers now have the right to request and obtain human intervention from the creditor that may include a clear and comprehensive explanation of the assessment of creditworthiness with automated data processing and the review of the credit application.

An area for further improvement:

The most controversial provision in negotiating the new Directive was Article 31 the price regulation measure of the new Directive. As the compromise solution, the current provision is fairly vague, talking about ‘measures’ on the Member State level, leaving room for Member States to determine the best price regulation technique for their circumstances, which may range from usury laws to direct cost caps by way of a percentage of the fixed figure (for more detailed comments on this provision see my paper here).

New EU Commission study on consumer over-indebtedness

At the end of September, the EU Commission published a new, comprehensive, and timely Study on European consumers' over-indebtedness and its implications. The study takes a muti-disciplinary approach aiming to get a clear and updated picture of over-indebtedness among European households and consumers.

The aim of the study was broken into five distinct tasks:

• obtain a granular and updated mapping of the situation of over-indebtedness among European households and consumers in all 27 EU Member States 

• gather improved knowledge of the perspectives, perceptions, and challenges of EU consumers in relation to over-indebtedness, including in light of whether or not they have personally experienced it and their knowledge of financial matters 

• collect more, and more precise, information about the macro-economic drivers of over-indebtedness and their short-, medium- and long-term impact, including an analysis of the impact of the COVID-19 pandemic, as well as recent energy price shocks and rising inflation 

• provide an in-depth legal analysis of concrete interactions between EU and national rules and provisions covering consumer credit, mortgage credit, and other contiguous matters

• conduct a behavioural experiment focused on assessing the capacity of households and consumers to make informed and optimal credit choices.

With almost 300 pages of empirical data, behavioral experiments, legal analysis, and literature review, this study could be useful for everyone working or interested in the area of financial consumer law.

New clarifications on information rules in the Consumer Credit Directive: the CJEU in Volkswagen Bank

In September 2021 the CJEU delivered an important judgment on the interpretation of the creditor's duty to inform and the associated consumer's right of withdrawal in Directive 2008/48/EC. Unfortunately, the judgment took a while to be published in English, and therefore we only managed to create this note now. The judgment remains relevant, also in light of the new Proposal (on which we reported here), which contains equivalent provisions in Articles 21 and 26.

The judgment concerned C-33/20, C-155/20, and C-187/20 joined cases involving consumer credit and further shaped the content and application of Article 10(2) and Article 14(1) of the Directive.

In terms of Article 10, the judgment is fairly technical with answering very specific questions on the content of the credit agreement, adding to the already detailed content of Article 10. The CJEU in this judgment specifies for instance that the contract must state clearly that it is concluded for a fixed term and that the contract does not need to set out all the situations provided by national law in which the contracting parties can terminate the contract. Particularly interesting are two interpretations provided by the CJEU:

On Article 10(1)(l) under which credit agreements must state in a clear and concise way the applicable rate of late payment interest at the time of contract conclusion, the arrangements for adjusting the rate, and any charges payable at default, the question was, in what way should the rate of interest be indicated. In the issue at hand, the contract said that the rate of interest will be 'five percentage points above the relevant base rate'. While the relevant base rate is fairly easy to determine, the CJEU did not agree with this formulation, they reasoned that this is the formula provided for calculating the rate of interest. In order to fully inform consumers, the contract must state the rate of interest in a specific percentage, similar to how the borrowing rate and the annual percentage rate of charge must be presented. In addition to expressing the late payment interest in a percentage then, the contract must also specify the way in which this rate is adjusted, enabling an average, reasonably observant, and circumspect consumers to determine and understand the arrangements for varying the late payment interest. In order to achieve this, two conditions must be satisfied: first, the method of calculation must be set out in a way that is readily understood by an average consumer who does not have specialist knowledge in finance and which enables the average consumer to calculate the rate of late payment interest based on the information provided in the contract; second, although the CJEU seems to be of the opinion that a national base rate is a good benchmark, this is only so, if the contract set out the frequency with which the base rate may be varied, as determined by national provisions.

Another interesting aspect of the judgment was the CJEU developing interpretation of Article 14 on the right of withdrawal. The CJEU ruled that if the information is not dully included in the contract following Article 10 and was neither communicated at a later stage, there is no time limit for the consumer to exercise the right of withdrawal under the Directive nor can the Member States impose such limitation in national legislation. The CJEU's standpoint was that in that case, the consumer was unaware of the limitation of the right, and the consumer could not be held responsible for that lack of awareness. This is true even if the right of withdrawal was exercised following a considerably long period after the conclusion of the contract; the CJEU dismissed the possibility of the consumer being held liable for the abuse of this right under the circumstances.

Rights of third party guarantors in payment services transactions - the CJEU in C-337/20 CRCAM

Last month the CJEU delivered another judgment on the interpretation of payment services rules. Case C-337/20 DM, LR v Casisse régionale de Crédit agricole mutuel (CRCAM)- Alpes-Provence tackles an interesting and highly important question of concurrent liability based on special and general legal rules.

Facts

CRCAM bank granted the company Groupe centrale automobile a current account credit facility guaranteed by joint and several security undertaken by LR. After terminating this credit facility, the bank ordered the guarantor to pay. The guarantor contended that by making transfers to third parties without authorization, the bank had breached its duties and the amount of those transfers should be deducted from its claim. 

The Cour d’appel considered the objection inadmissible. It held that in accordance with the Franch law implementing Directive 2007/64/EC (PSD1), the company had a 13-month period within which to contest the disputed transactions and since it failed to do so, the objection was precluded.

LR appealed and argued that not respecting the law that implemented PSD1 did not prevent the court to hold CRCAM liable for breaching their general duty of care provided for in the Civil Code.

Legal questions and rulings

The referring national court in the first place asked the CJEU whether the special provisions in Articles 58 and 60(1) of PSD1 as implemented into national law prevent courts to hold contracting parties accountable on the basis of other rules than those when some of the special rules had been breached?

The court ruled that special rules, in this case, those of PSD1 and its implementing legislation, get primacy over general rules of the Civil Code. The court first looked at the wording of the relevant provisions and concluded that they are clear; if the user failed to report to the payment service provider the unauthorized transaction within 13 months from the date of the transaction, liability of the payment service provider or compensation for the authorized transaction is no longer possible, neither based on special rules nor based on general rules. Secondly, the court looked at the context of the provision and highlighted its full harmonization nature, which means, that Member States cannot go beyond the said provisions of PSD1. This prohibition includes the utilization of more generally applicable rules of the Civil Code. Third, the court relied on teleological interpretation to support its ruling and concluded that alternative liability regimes should not contradict the harmonized liability regime established by PSD1. This would be contrary to legal certainty. Finally, the CJEU considered the background of PSD1 that also supported its conclusion.

Within the second question, the CJEU tackled the special situation that arose from a three-party relationship and the position of the guarantor. The CJEU held that the special, national provisions implementing PSD1 do not prevent the guarantor to rely on general civil law contractual liability of the payment service provider to challenge the amount of the guaranteed debt. In its reasoning, the court first emphasized that the special liability regime established via PSD1 only applies between the payment service user and the payment service provider (Art. 1(2) PSD1), or between 'payer' and 'payee' (Article 4.7 and 4.8 PSD1) without any reference to the guarantor. The contract of guarantee is thus not governed by PSD1 or indeed by any other EU law instrument. The court concluded that such contract continues to be subject to the rights and duties established under the applicable national law. Finally, the court noted that the liability regime provided by PSD1 is based on the balance between the two parties. The obligation to provide information (borne by the payment service provider) and the obligation to notify any authorized transaction within the period of 13 months (conferred on the payment service user). Thus, in order to trigger the liability of the payment service provider for any unauthorized transaction, the guarantor cannot benefit from the regime established by PSD1, it thus follows that the guarantor must have recourse to the possibilities provided for him/her under the applicable national law.

Our evaluation

Although this is not a typical consumer case, given that the main transaction was between two legal persons and the guarantor seems to have been the only consumer in the three-party relationship; the case nevertheless raises very interesting questions highly relevant for any contractual transaction, including consumer contracts. 

The first interesting aspect of the judgment is that it points to the unharmonized nature of guarantee contracts, contracts that are very relevant for modern financial services, and that are frequently sought for by banks when they provide loans.

The second relevant aspect of the judgment is that it contributes to craving out the relationship between lex generalis and lex specialis (in this case implemented EU legislation) confirming the supremacy or primacy of EU law over national law.  If we connect this case to C-303/20 Ultimo Portfolio Investment (see our report here) and C-686/19 Soho Group (access our report here) we can draw important conclusions. The message of the CJEU on the relationship between lex specialis and lex generalis seems to be that if the relevant EU law provision is one of a full harmonization, it gets primacy over national law and cannot be contradicted by traditional rules of eg. the civil code. However, as long as the provision is not of a full harmonization nature and the particular EU legal instrument is a directive, Member States can go beyond the directive and the relevant provision under scrutiny as long as the national law achieves the intended result pursued by the given directive. 

Interest free loans: why should they be regulated?

In recent days an increasingly popular high-cost short-term credit called 'buy now pay later' (BNPL) is frequently in the news headlines. BNPL is a type of loan that enables consumers to delay the payment; usually 14 to 30 days in full or to spread the cost over several months in installments. The attractive feature of the loan is that it is interest-free. 

This loan is essentially used when consumers buy goods online. The option to defer or slice up payment comes up at check out (for more see here). Unsurprisingly, the product is very popular with younger generations (so-called millennials and Generation Z). However, 'fashion-conscious' shoppers are not the only consumers of this product; it is increasingly being used by those in financial difficulties. On the provider side, BNPL is a world of fintech, many established and newly emerged financial technology companies such as Klarna and Paypal are offering this product, even the highly successful and popular Revolut is currently working on developing their own BNPL. Most recently Amazon teamed up with Affirm to offer BNPL to their customers.

However, as with any credit product, BNPL is not without dangers. Research shows BNPL users might not be fully aware of the potential of this product to contribute to the accumulation of large debt. The seemingly innocent, interest-free feature of the product encourages consumers to spend irresponsibly and beyond their means. BNPL tends to be heavily advertised, often resulting in unplanned and impulsive purchases. Klarna even commissioned a research study into consumers' shopping behavior, providing evidence for partner retailers on 'how to persuade shoppers to make 'emotional' purchases instead of 'logical' ones'. Although free to enter into the contract; for consumers who do not pay back the loan on time or miss a payment, the BNPL product acts as any other loan. It potentially triggers additional fees and charges such as late payment charges, and even (backdated) interest; impacts the consumer's creditworthiness and credit score; and it is subject to debt enforcement and potentially harmful debt collection practices. In the UK around the third of BNPL customers faced these consequences.

Given the nature of these credit products and the way they are sold, there is no question BNPL loans deserve regulatory attention. It is particularly positive that the EU Commission's newly presented Proposal for a Directive on Consumer Credits now proposes to regulate interest-free credit and thus these types of loans. 

A new era in consumer credit law? The Commission's proposal on the new Directive on Consumer Credits

This summer might prove significant for improving the financial well-being of European consumers. On 30 June 2021 the EU Commission presented its long-awaited Proposal for a Directive on Consumer Credits, a key piece of legal instrument in the area of financial consumer law.

Overall, the proposal does seem to suggest an overhaul of the current consumer credit regime. The proposed scope of the new directive is much wider and far-reaching than the current 2008/48/EC Directive on Credit agreements for consumers (Consumer Credit Directive). The structure and content of the proposed directive resemble more to Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property (Mortgage Credit Directive) than to the current Consumer Credit Directive.

We could highlight the following major improvements:

Article 2 significantly broadens the scope of the new Directive, which would apply to small loans below 200EUR, to loans provided by crowdfunding platforms, and to the increasingly popular 'buy now pay later' credit products.

Article 14 regulated tying and bundling practices, prohibiting the former.

Article 17 bans unsolicited credit sales.

Article 18 introduces a stricter consumer-centric creditworthiness assessment. It now bans lending to consumers where the creditworthiness assessments end with a negative result. Where the assessment involves automated data processing or profiling, consumers will have a right to demand human intervention to review the machine's decision. 

Article 31 requires the Member States to introduce or maintain price caps. The Proposal requires caps on the interest rate, the annual percentage rate of charge, and/or the 'total cost of credit to the consumer'.

Article 32 introduced conduct of business requirements for the staff of financial firms to act honestly, fairly, transparently, and professionally and take account of the rights and interests of the consumers when they create or sell credit products or when the credit contracts are enforced.

Article 34 requires the Member States to promote financial education, especially in relation to responsible borrowing and debt management.

Article 35 requires the Member States that creditors have adequate policies and procedures in place to reasonable forbearance (such as loan extensions or payment deferrals) before enforcement proceedings are initiated when consumers find themselves in financial difficulties. 

Even the above short summary signals that the proposal is much more in line with the times that we live in than the present Consumer Credit Directive. Focusing on the need to enable consumers to make informed decisions, and disregarding modern financial products such as high-cost short-term loans and those brought about with the rapid development of technology such as products provided by crowdfunding platforms. BEUC welcomed the Proposal, emphasizing that it came just at the right time to prevent further predatory lending practices by high-cost short-term credit providers and to address consumers' financial difficulties created by the current coronavirus pandemic.

The Proposal is a result of a long and thorough process; fitness check of the Consumer Credit Directive, stakeholder consultation, use of expertise, and impact assessment. There was a clear and sustained focus around some problematic areas of the Consumer Credit Directive such as its deficiency in the provision of responsible lending. However, some issues have been left out from the process of evaluation, such as the need to carve out the meaning of the 'total cost of credit for consumers' currently in Article 3(g) which was recently shaped by the CJEU. Thus, there may be more work to do in polishing the proposal. Everyone involved in the EU's complex legislative process should take the opportunity to re-evaluate the Proposal's coverage and reach, to make it as good and protective as possible for European consumers.

Sanctions for breaching national rules on consumer credit: the CJEU in C-303/20

Earlier this month the CJEU delivered another judgment on the interpretation of Directive 2008/48/EC on Consumer Credit Agreements. In C-303/20 Ultimo Portfolio Investment SA v KM the CJEU was asked to interpret Art. 23 of the Directive, according to which, penalties for breach of national rules on consumer credit must be effective, proportionate, and dissuasive.

The facts

The consumer, KM concluded a consumer credit agreement with Aasa Polska, from which agreement the debt was assigned to the claimant, Ultimo Portfolio Investment. Although the monthly installments for this loan were only around 88 EUR (408 PLN), it transpired that at the time when the contract was concluded, the consumer was heavily indebted, having 23 loans, and her husband independently extra 24 active loans! These together totaled approximately 98 840 EUR (457 830 PLN) amounting to a monthly figure of approx. 2 153 EUR (2300 PLN). At the time, KN was employed with a net salary of approx. 500 EUR (2300 PLN) and her husband was out of work, with no disposable income.

Unsurprisingly, the consumer was unable to honour her payment obligations, and following the default, the claimant brought an action in front of the competent Polish court. The defendant consumer however alleged that before the loan was approved, the lender did not ask any questions to enquire about her financial situation: her outstanding debts, her disposable income, or the debts of her household. Since the claimant was unable to provide proof to the contrary, the court tackled the issue of sanctions, questioning whether the Polish rules correctly implemented Art. 23 of the Directive. In particular, the referring court specified that the Polish Code of Minor Offences only imposes a fine for breaching responsible lending obligations, and this fine is time-barred and only affects the natural persons within the credit institutions such as the director of the company or the credit intermediary.  

The legal question

The referring court effectively asked whether Art. 23 of the Directive must be interpreted to mean that in determining the effectiveness, proportionality, and dissuasiveness of the penalties courts could only take into account provision(s) of the national law specially adopted to implement Art. 23 of the Directive?

The ruling

The CJEU ruled that in interpreting Art. 23 of the Directive, national courts must take into account not only the special national provisions that are adopted to transpose the Directive but also the other provisions of the relevant law that should be interpreted in the light of the working and objectives of the Directive.

In its reasoning to CJEU acknowledged that the low amount of the penalty or that facts that it only applies to natural persons may be indicative of its shortcomings. Referring to its earlier case law it reiterated, penalities to be effective and dissuasive they must deprive the economic benefit of the infringement and must have a positive effect on the consumer in question.

However, the CJEU reminded that under Art. 288 TEFU, directives are legal instruments that are result-oriented, while binding on the result to be achieved they leave discretion to the Member States in the form and method of implementation. Consequently, transposition does not necessarily require legislative action. The existence of general principles and general rules may render a legislative action superfluous. It follows, that in order to determine whether a national law adequately implemented the obligations resulting from the given directive, it is important to take into account not only the legislation specifically adopted for the purposes of transposing the directive but also 'all the available and applicable legal rules.' National courts must therefore consider the whole body of rules of national law and interpret them in the light of the wording and purpose of the Directive in order to achieve the outcome that is consistent with the objectives pursued by the Directive.

In the present case, the court highlighted that Polish law benefits from a range of civil penalties in addition to those in the Code of Minor Offences. Importantly, the CJEU also highlighted that the case at hand would benefit from the penalty applicable for using unfair terms. Namely, Directive 1993/13/EC on unfair contract terms was implemented in Polish law to render excessive charges not binding on consumers (see our report on Profi Credit Polska).

Our evaluation

This judgment provided an important contribution to our understanding of European consumer credit law. It suggests a holistic or we could call a 'contextual approach' to interpreting the fairly vague and general provision on penalties in Art. 23 of the Directive, giving it a more concrete content in a national context. The important message is that in determining whether the sanction meets the requirements of the Directive, national courts must take into account all available sanctions under the applicable national rules, and the CJEU seems to suggest that if more than one sanction is applicable, national courts should weigh them up according to the criteria provided in Art. 23. The judgment also gives useful hints on how to interpret what is effective and dissuasive in the case at hand, and it could be read in connection with other judgments that tackled the aspect of proportionality of sanctions (see our report on Home Credit Slovakia).

Towards an EU financial competence framework: will it work?

Following a recent study of FISMA on the development of a financial competence framework for the EU, in April 2021 the EU Commission (DG FISMA) and the OECD International Network on Financial Education announced that they will jointly develop the framework for the EU. The project is part of the EU capital markets union action plan (on which we reported here) where the commission promised to raise trust in EU capital markets by improving financial literacy.

The study defines a financial competence framework for individuals as 'a document outlining key areas of competence pertaining to personal finance (for instance; planning a budget, investing, borrowing and preparing for retirement), and within these categories, specific levels of proficiency.' The study starts from the premise that financial literacy is very important for one's financial wellbeing and is becoming increasingly essential for our everyday lives, especially following the current pandemic that resulted in less intermediation and financial advice. Needless to say, the European levels of financial literacy remain low and show variations between the Member States and groups of the population. Although there are  existing financial competence frameworks that cover key areas such as budgeting and planning, payments and spending, borrowing, as well as risk management and investing, there are considerable differences among each other and a number of Member States do not have any. 

The EU financial competence framework will cover the knowledge/awareness, skills/behaviours and confidence/attitudes/motivation that individuals need to develop and display in order to support their financial well-being throughout their lives. It will be similar for instance to existing language proficiency frameworks that start with a basic A1 level and ends with a C2 level. 

It will be made available for voluntary uptake in the EU by public authorities, private bodies, and civil society to develop policies and educational tools and to assess their effectiveness: It could also provide a basis for public authorities and private bodies to design learning materials and tools for educational purposes for youth and adults. In particular, these could support the inclusion of financial education in curricula in schools, universities, and vocational education institutions in Member States and inform the design of teacher training. The framework could also underpin the setup of awareness-raising campaigns or financial education centres (public or private), and could support the development, implementation and update of national financial literacy strategies. 

The initiative certainly sounds very interesting and perhaps necessary. There are many questions around how and whether the initiative will work, given that the current efforts resulted that on average, adults have major gaps in understanding basic financial concepts. Therefore, in taking these initiatives one must not forget that financial education and financial literacy should not be replacing a high level of consumer protection.

From Open Banking to Open Finance? UK developments

Following the possibility provided by PSD2 of opening up banking data for third-party access, the UK's Competition and Markets Authority instructed the 9 largest banks to do so at the request of the consumer. This initiative called ‘Open Banking' enables consumers to share their data with third-party providers that can use the data to develop innovative financial products and to provide ‘traditional’ services in a more convenient way (see our post here).

Three years post this experiment and building on the experience gained from Open Banking, the UK’s Financial Conduct Authority may be ready to take the next step to ‘Open Finance’. The FCA published a Call for Input in December 2019 on the shift to Open Finance and following the receipt of a large number of responses from industry representatives it published its Feedback Statement in March 2021.

Open Finance refers to the extension of Open Banking-like data sharing to a wider range of financial products, such as savings, investments, pensions, and insurance. Open finance enables consumers and SMEs to access and share their data with third-party providers outside banking, which can then use that data to develop innovative products and services which meet consumers’ current and future needs. The idea is greater ownership and control of consumers and SME's over their data.

Open Finance could potentially offer significant benefits to consumers, including increased competition, improved financial advice, and improved access to a wider and more innovative range of financial products and services. The FCA also sees this as an opportunity to enable access to creditworthy but previously excluded consumers to financial services such as credit.

In addition to consumers, SME’s would also benefit from open finance, by improved integration of payment, accounting, and lending platforms for internal management, leading to greater cash flow control. SME's could better compare the products and services available to them from a range of providers, and through this avenue, they would benefit from greater access to commercial lending. 

Overall, both consumers and SME's could gain access to a wider range of products and services, have greater control over their data, and could potentially better engage with their finances.

However, Open Finance would create or increase risks and raise new questions especially around data protection and digital identity. However, the FCA is also concerned that Open Finance would create or increase risks and raise new questions especially around data protection and digital identity. Further digitalization might deepen the exclusion of some consumer groups such as those that are less digitally savvy and greater responsibility might result in a choice of inappropriate or even dangerous financial products. The initiative will therefore have to be followed by an appropriate legislative and regulatory framework, common standards, and a designation of an implementation entity, as for Open Banking.

There is no doubt Open Finance could be highly beneficial for consumers, however, with greater control comes greater responsibility, and the big question from a consumer protection perspective is, are consumers ready to take this on?