Key facts of the case:
Request for a preliminary ruling — Consumer protection — Directive 2008/48 — Credit agreements for consumers — Pre-contractual check of the consumer’s creditworthiness by the creditor — Creditor’s obligations to provide information upon conclusion of the agreement — Penalties in the event of failure to comply — Application of the court’s own motion — National provision which prohibits national courts, on expiry of a limitation period or time bar, from finding and penalising, of their own motion or following an objection raised by the consumer, breaches of obligations.
Outcome of the case:
87) I therefore propose that the Court give the following answer to the question referred in the Cofidis case (C‑616/18):
The protection guaranteed to consumers by Directive 2008/48/EC on credit agreements for consumers precludes a national provision which, in an action brought by a seller or supplier against a consumer on the basis of a credit agreement which they have concluded, prohibits the national court, on expiry of a limitation period of 5 years from the conclusion of the agreement, from finding, of its own motion, a failure to comply with the provisions relating to the obligation laid down in Article 8 of the directive to verify the creditworthiness of the consumer or a failure to comply with those of Article 10(2) of the directive relating to the information which must be included in a clear and concise manner in credit agreements, and to establish the consequences that arise from a failure to comply with those obligations under national law. When penalising such a failure, the national court must assess, taking account of all the circumstances of the individual case, whether the respective penalties are effective, dissuasive and proportionate.
88) Moreover, I propose that the Court give the following answers to the questions referred in the OPR-Finance case (C‑679/18):
85) However, the guarantees provided by the principle of audi alteram partem and, in particular, the right to be heard must also be observed in this context. (55) They are part of the rights of defence guaranteed by Article 47 of the Charter of Fundamental Rights. The national court must therefore hear the parties before it decides a dispute on a ground that it has identified of its own motion.