Z. (Droit d'obtenir un duplicata du contrat de credit) (Consumer protection - Early repayment - Judgment) [2023] EUECJ C-326/22 (12 October 2023)

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(Reference for a preliminary ruling – Consumer protection – Credit agreements for consumers – Directive 2008/48/EC – Article 16(1) – Contractual rights and obligations – Early repayment – Reduction in the total cost of the credit for consumers – Loss of a copy of the agreement – Right to obtain a duplicate of the agreement from the creditor)

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, Warsaw, Poland), made by decision of 18 March 2022, received at the Court on 13 May 2022, in the proceedings

composed of Z. Csehi (Rapporteur), President of the Chamber, I. Jarukaitis and D. Gratsias, Judges,

having regard to the written procedure and further to the hearing on 19 April 2023,

– Z. sp. z o.o., by M. Plichta, A. Tomaszewska, radcowie prawni, and O. Wojciechowski,

– the Polish Government, by B. Majczyna, M. Kozak and S. Żyrek, acting as Agents,

– the European Commission, by G. Goddin and M. Owsiany-Hornung, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Article 16(1) 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 (OJ 2008 L 133, p. 66), read in the light of the principle of effectiveness.

2 The request has been made in proceedings between Z. sp. z o.o., a Polish company, and A. S.A., a banking institution (‘the bank’), concerning a request to obtain documents and information for the purpose of recovering a debt, of which Z. is the assignee, corresponding to the amount owed by the bank by virtue of the reduction in the total cost of the credit due to the early repayment of that credit.

‘The consumer should have the right to discharge his obligations before the date agreed in the credit agreement. …’

4 Article 3 of that directive, entitled ‘Definitions’, is worded as follows:

(a) “consumer” means a natural person who, in transactions covered by this Directive, is acting for purposes which are outside his trade, business or profession;

(g) “total cost of the credit to the consumer” means all the costs, including interest, commissions, taxes and any other kind of fees which the consumer is required to pay in connection with the credit agreement and which are known to the creditor, except for notarial costs; costs in respect of ancillary services relating to the credit agreement, in particular insurance premiums, are also included if, in addition, the conclusion of a service contract is compulsory in order to obtain the credit or to obtain it on the terms and conditions marketed;

(m) “durable medium” means any instrument which enables the consumer to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;

5 Article 10 of that directive, entitled ‘Information to be included in credit agreements’, provides, in paragraph 1 thereof:

All the contracting parties shall receive a copy of the credit agreement. This Article shall be without prejudice to any national rules regarding the validity of the conclusion of credit agreements which are in conformity with Community law.’

6 Article 16 of that directive, entitled ‘Early repayment’, provides, in paragraph 1 thereof:

‘The consumer shall be entitled at any time to discharge fully or partially his obligations under a credit agreement. In such cases, he shall be 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 contract.’

7 The ustawa o kredycie konsumenckim (Law on Consumer Credit) of 12 May 2011 (Dz. U. of 2011, No 126, item 715), in the version applicable to the dispute in the main proceedings (‘the Law on Consumer Credit’), transposed Directive 2008/48 into Polish law.

‘1. In the case of full repayment of the credit before the date indicated in the agreement, the total cost of the credit is to be reduced by the costs relating to the remaining duration of the contract, even if the consumer had borne those costs before the repayment.

2. In the case of partial repayment of the credit before the date indicated in the agreement, paragraph 1 applies mutatis mutandis.’

The dispute in the main proceedings and the question referred for a preliminary ruling

9 Between 14 November 2015 and 24 July 2018, the bank concluded 15 credit agreements for consumers (‘the credit agreements at issue’) with six individuals (‘the consumers’). The consumers repaid their credits before the maturity date indicated in the credit agreements at issue and subsequently transferred their claims, corresponding to the amounts owed by the bank under Article 49(1) and (2) of the Law on Consumer Credit, to Z. following that early repayment.

10 However, the consumers no longer had their copies of the credit agreements at issue, meaning that they could not disclose them to Z.

11 Z. nevertheless sought confirmation of the existence of the consumer claims from the Biuro Informacji Kredytowej (Credit Information Agency, Poland).

12 In those circumstances, Z. brought an action before the Sąd Rejonowy dla m.st. Warszawy w Warszawie (District Court, Warsaw, Poland), the referring court, seeking the delivery from the bank of duplicates of the credit agreements at issue and of contracts connected to them, in particular insurance contracts, as well as the disclosure of certain information concerning those credit agreements. The bank submits that it is not legally required to provide those items.

13 The referring court is uncertain as to whether Article 16 of Directive 2008/48, having regard to the principle of effectiveness of EU law, confers the right to request documents such as a credit agreement for consumers which has been repaid early and information concerning the date and amount of the repayment, when obtaining them is necessary to assess whether an action may be brought, where appropriate, without risking having to pay the other party’s costs or part of the claim becoming time-barred.

14 In that regard, that court recalls that EU law and national provisions seek to ensure a high level of consumer protection and provide that, in the case of early repayment of the credit, those consumers are 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. However, under national law, the consumer must prove the existence of that claim, which is impossible without submitting the agreement to the competent court and without precisely establishing the claim at the date on which the credit was repaid.

15 Furthermore, according to the referring court, refusing the consumer the right to obtain a copy of the credit agreement, the original of which he or she no longer has, results in it also being impossible for him or her not only to verify the accuracy of his or her own calculation of the sums to be repaid by the creditor, but also to assess the economic expediency of a possible action for the recovery of those sums. Moreover, the court notes that the consumer is the weaker party to the agreement and lacks the means at the disposal of operators like banks to keep intact copies of every important document.

16 Lastly, the referring court considers that, if the consumer did not have the right to require the creditor to deliver a copy of the credit agreement to him or her, it would follow that the loss, by the consumer, of the original copy of that agreement, obtained when it was concluded, would factually result in him or her being deprived of any actual possibility of recovering the sums owed by the creditor under Article 49(1) and (2) of the Law on Consumer Credit. That interpretation would compromise the effectiveness of the right to a reduction in the cost of the credit conferred on the consumer by Article 16(1) of Directive 2008/48, by exposing him or her to the risk of having his or her action based on that right dismissed, of having to pay the costs incurred by the creditor in the proceedings or of having to face his or her claim becoming time-barred.

17 It is in those circumstances that the Sąd. Rejonowy dla m.st. Warszawy w Warszawie (District Court, Warsaw) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘In the context of the principle of … effectiveness of EU law, must Article 16(1) of Directive 2008/48 be understood as meaning that a consumer, or an undertaking to which a consumer has transferred his [or] her rights arising from that provision of the directive, may request, pursuant to it, that the creditor hand over a copy of the agreement (as well as the [general terms and conditions of the credit agreement]), and information on repayment of the credit which are necessary in order to verify the correctness of the calculation of the sums paid to the consumer as repayment of the proportion of the total cost of the credit in connection with the early repayment thereof and necessary in order to bring a claim for any repayment of the aforementioned amounts?’

18 As a preliminary point, it should be noted that the fact that the dispute in the main proceedings is between two legal entities does not preclude the application of Directive 2008/48. As is apparent from paragraph 20 of the judgment of 11 September 2019, Lexitor (C‑383/18, EU:C:2019:702), the scope of that directive is not dependent on the identity of the parties to the dispute, but on the capacity of the parties to the credit agreement. In the present case, the claims which are the subject of the disputes in the main proceedings are derived from the credit agreements at issue, concluded between the consumers and the bank, and were assigned to the applicant in the main proceedings following the early repayment of those credits.

19 It follows that the dispute at issue in the main proceedings falls within the scope of Directive 2008/48.

20 By its question, the referring court asks, in essence, whether Article 16(1) of Directive 2008/48, read in the light of the principle of effectiveness of EU law, must be interpreted as meaning that a consumer, within the meaning of Article 3(a) thereof, 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, but which is necessary for verifying the calculation of the sum owed by the creditor by virtue of the reduction in the total cost of the credit due to its early repayment and for allowing that consumer to bring a possible action for the recovery of that amount.

21 It should be recalled, in the first place, that Article 16(1) of Directive 2008/48, read in the light of recital 39 thereof, provides for the consumer to be entitled to repay the credit early and to receive 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 (judgment of 11 September 2019, Lexitor, C‑383/18, EU:C:2019:702, paragraph 22).

22 However, it is not explicitly apparent from the wording of Article 16(1) of Directive 2008/48 that, in order to allow the consumer to exercise his or her right to a reduction in the total cost of the credit, the creditor is required to provide him or her with a copy of the agreement if it is lost and to disclose information not featured in the agreement which would be necessary for calculating the amount owed to the consumer pursuant to that provision.

23 However, according to settled case-law, when interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgments of 11 September 2019, Lexitor, C‑383/18, EU:C:2019:702, paragraph 26, and of 22 December 2022, Quadrant Amroq Beverages, C‑332/21, EU:C:2022:1031, paragraph 42 and the case-law cited).

24 Therefore, in the second place, as regards the objective of Directive 2008/48, it is settled case-law that that directive is intended to guarantee a high level of consumer protection. That system of protection is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his or her bargaining power and his or her level of knowledge (judgment of 11 September 2019, Lexitor, C‑383/18, EU:C:2019:702, paragraph 29 and the case-law cited).

25 Having regard to that objective of ensuring a high level of protection for consumer interests, it is necessary that the consumer have all information concerning the cost of the credit to allow him or her to establish its total extent, in particular in order to exercise the right, conferred on him or her by Article 16(1) of Directive 2008/48, to obtain a reduction in the total cost. Accordingly, the information requirements imposed by Directive 2008/48 play an essential role in achieving the aim pursued by that directive.

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.

27 Moreover, in the event that information necessary for calculating that amount does not feature in the agreement itself, the obligation to ensure that Article 16(1) of Directive 2008/48 is effective requires that the consumer receive that information from the creditor where it is necessary for the calculation of that amount. It is for the referring court to determine whether that was the situation in the present case.

28 Furthermore, as the Polish Government noted, a creditor that denies a consumer the right to a proportional reduction in the total cost of the credit based on its early repayment in full, while knowing that that consumer lacks the contractual documents, has no legitimate interest in concealing those documents from the consumer or from his or her assignee.

29 As regards, in the third place, the context in which Article 16(1) of Directive 2008/48 occurs, it should be recalled that that provision features in Chapter IV thereof, entitled ‘Information and rights concerning credit agreements’. It must be concluded that the EU legislature thus expressly indicated its intention to establish a close link between, on the one hand, the possibility, for the consumer, of exercising the rights concerning the credit agreement and, on the other, access to information concerning that agreement.

30 It follows that the information requirement resulting from the EU legislature’s intention to ensure a high level of consumer protection, through Directive 2008/48, as is apparent from paragraphs 24 and 25 above, includes, inter alia, the requirement that the creditor send the consumer a copy of the credit agreement and all information concerning the repayment of the credit not featured in the agreement itself, but which is necessary for verifying the calculation of the amount corresponding to the reduction in the total cost of the credit to which the consumer is entitled subsequent to the early repayment of that credit and for allowing him or her to bring a possible action for the recovery of that amount.

31 Moreover, that interpretation is confirmed by Article 10 of Directive 2008/48, which concerns the information to be included in credit agreements and which precedes Article 16(1) thereof in Chapter IV, ‘Information and rights concerning credit agreements’. According to the first paragraph of Article 10, credit agreements are to be drawn up on paper or on another durable medium.

32 In that regard, it is relevant that, according to the case-law of the Court, it follows, inter alia, from the definition of ‘durable medium’ in Article 3(m) of Directive 2008/48, that that medium must enable the consumer, in a similar way to paper form, to be in possession of the relevant information to enable him or her to exercise his or her rights, where necessary. What is relevant for the consumer is that he or she should be able to store the information which has been addressed to him or her personally and to rest assured that its content will not be altered, that the information will be accessible for an adequate period and that it will be possible to reproduce it unchanged. Such a medium must allow, first, the consumer to easily access that information for future reference for a period of time adequate for the purposes of the information and, second, the unchanged reproduction of the information stored (see, to that effect, judgment of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraphs 35 and 37 and the case-law cited).

33 Since the actual possession of those documents and the information therein is necessary for such purposes, the delivery, by the creditor, of a copy thereof to the consumer who no longer has them must be regarded as a requirement in the same way.

34 Lastly, it must be borne in mind that the principle of primacy of EU law requires, inter alia, national courts, in order to ensure the effectiveness of all provisions of EU law, to interpret, to the greatest extent possible, their national law in conformity with EU law (judgment of 4 May 2023, ALD Automotive, C‑78/22, EU:C:2023:379, paragraph 39 and the case-law cited).

35 It follows, in particular, that a national court, when hearing, as in the present case, a dispute which is exclusively between private individuals, is required, when applying the provisions of national law adopted for the purpose of transposing a directive, to interpret them in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by that directive, without prejudice to certain limits such as, inter alia, the prohibition on interpretation of national law contra legem (judgment of 4 May 2023, ALD Automotive, C‑78/22, EU:C:2023:379, paragraph 40 and the case-law cited).

36 In the light of the foregoing considerations, the answer to the question referred is that Article 16(1) of Directive 2008/48, must be interpreted as meaning that a consumer, within the meaning of Article 3(a) thereof, 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, but which is necessary for verifying the calculation of the sum owed by the creditor by virtue of the reduction in the total cost of the credit due to its early repayment and for allowing that consumer to bring a possible action for the recovery of that amount.

37 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 16(1) 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 as meaning that a consumer, within the meaning of Article 3(a) thereof, 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, but which is necessary for verifying the calculation of the sum owed by the creditor by virtue of the reduction in the total cost of the credit due to its early repayment and for allowing that consumer to bring a possible action for the recovery of that amount.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Z. (Droit d'obtenir un duplicata du contrat de credit) (Consumer protection - Early repayment - Judgment) [2023] EUECJ C-326/22 (12 October 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C32622.html Cite as: ECLI:EU:C:2023:775, [2023] EUECJ C-326/22, EU:C:2023:775, [2024] Bus LR 39, [2023] WLR(D) 439

Court of Justice of the European Communities (including Court of First Instance Decisions)