CJEU Case C-616/18 / Opinion

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):

1. Article 8 of Directive 2008/48/EC on credit agreements for consumers precludes a national provision which, in proceedings brought by a creditor against a consumer on the basis of a contract concluded between them, prohibits the national court from verifying, of its own motion, whether the creditor has complied with its obligation to assess the creditworthiness of the consumer if the consumer has not invoked this within a three-year limitation period or if that limitation period has expired.
2. Where the national court has of its own motion found that Article 8 of Directive 2008/48 has been infringed, it must, subject to any intention to the contrary on the part of the consumer, establish all the consequences arising from that finding under national law without awaiting a form of order to that effect from the consumer and, if applicable, irrespective of the expiry of a limitation period, provided that the penalties imposed by that law are effective, dissuasive and proportionate.