Provisional text

delivered on 10 April 2025 (1)

Case C‑143/23

KI,

FA,

Mercedes-Benz Bank AG,

Volkswagen Bank GmbH

(Request for a preliminary ruling from the Landgericht Ravensburg (Regional Court, Ravensburg, Germany))

( Reference for a preliminary ruling – Consumer protection – Credit agreement for the purchase of a motor vehicle – Directive 2008/48/EC – Article 14(1) – Right of withdrawal – Consequences of exercising the right of withdrawal from a credit agreement linked to a sales agreement – Obligations of the consumer vis-à-vis the creditor – Article 14(3)(b) – Payment of interest following withdrawal from a credit agreement linked to a contract for the supply of goods )

Introduction

In the present case, the Court is asked by the Landgericht Ravensburg (Regional Court, Ravensburg, Germany) to give a preliminary ruling on the interpretation of Directive 2008/48/EC (2) in the course of disputes between two consumers and car loan companies concerning the exercise of the right of withdrawal from credit agreements linked to a contract for the sale of a vehicle.

This case provides the Court with the opportunity to develop its case-law on the consequences of the exercise by the consumer of the right of withdrawal in the context of a linked credit agreement. More specifically, the second and third questions, which will be addressed in this Opinion, are concerned, on the one hand, with whether the first sentence of Article 14(3)(b) of Directive 2008/48 provides for full harmonisation as regards linked credit agreements and, on the other hand, with whether it is compatible with EU law for the borrower, following withdrawal from a linked credit agreement, to be obliged to pay interest at the contractually agreed borrowing rate to the creditor or to the seller, as appropriate, for the period between the payment of the loan to the seller of the vehicle being financed and the time when the vehicle is returned.

Legal framework

European Union law

Recitals 7 to 10, 31, 34 and 35 of Directive 2008/48 are worded as follows:

‘(7) In order to facilitate the emergence of a well-functioning internal market in consumer credit, it is necessary to make provision for a harmonised Community framework in a number of core areas. In view of the continuously developing market in consumer credit and the increasing mobility of European citizens, forward-looking Community legislation which is able to adapt to future forms of credit and which allows Member States the appropriate degree of flexibility in their implementation should help to establish a modern body of law on consumer credit.

(8) It is important that the market should offer a sufficient degree of consumer protection to ensure consumer confidence. Thus, it should be possible for the free movement of credit offers to take place under optimum conditions for both those who offer credit and those who require it, with due regard to specific situations in the individual Member States.

(9) Full harmonisation is necessary in order to ensure that all consumers in the Community enjoy a high and equivalent level of protection of their interests and to create a genuine internal market. Member States should therefore not be allowed to maintain or introduce national provisions other than those laid down in this Directive. However, such restriction should only apply where there are provisions harmonised in this Directive. Where no such harmonised provisions exist, Member States should remain free to maintain or introduce national legislation. Accordingly, Member States may, for instance, maintain or introduce national provisions on joint and several liability of the seller or the service provider and the creditor. Another example of this possibility for Member States could be the maintenance or introduction of national provisions on the cancellation of a contract for the sale of goods or supply of services if the consumer exercises his right of withdrawal from the credit agreement. …

(10) The definitions contained in this Directive determine the scope of harmonisation. The obligation on Member States to implement the provisions of this Directive should therefore be limited to its scope as determined by those definitions. However, this Directive should be without prejudice to the application by Member States, in accordance with Community law, of the provisions of this Directive to areas not covered by its scope. A Member State could thereby maintain or introduce national legislation corresponding to the provisions of this Directive or certain of its provisions on credit agreements outside the scope of this Directive, for instance on credit agreements involving amounts less than EUR 200 or more than EUR 75 000. Furthermore, Member States could also apply the provisions of this Directive to linked credit which does not fall within the definition of a linked credit agreement as contained in this Directive. Thus, the provisions on linked credit agreements could be applied to credit agreements that serve only partially to finance a contract for the supply of goods or provision of a service.’

…

(31) In order to enable the consumer to know his rights and obligations under the credit agreement, it should contain all necessary information in a clear and concise manner.

…

(34) In order to approximate the procedures for exercising the right of withdrawal in similar areas, it is necessary to make provision for a right of withdrawal without penalty and with no obligation to provide justification, under conditions similar to those provided for by Directive 2002/65/EC [of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC (OJ 2002 L 271, p. 16].

(35) Where a consumer withdraws from a credit agreement in connection with which he has received goods, in particular from a purchase in instalments or from a hiring or leasing agreement providing for an obligation to purchase, this Directive should be without prejudice to any regulation by Member States of questions concerning the return of the goods or any related questions.’

Article 1 of that directive, entitled ‘Subject matter’, provides:

‘The purpose of this Directive is to harmonise certain aspects of the laws, regulations and administrative provisions of the Member States concerning agreements covering credit for consumers.’

Article 3 of that directive, entitled ‘Definitions’, provides:

‘For the purposes of this Directive, the following definitions shall apply:

…

(n) “linked credit agreement” means a credit agreement where:

(i) the credit in question serves exclusively to finance an agreement for the supply of specific goods or the provision of a specific service, and

(ii) those two agreements form, from an objective point of view, a commercial unit; a commercial unit shall be deemed to exist where the supplier or service provider himself finances the credit for the consumer or, if it is financed by a third party, where the creditor uses the services of the supplier or service provider in connection with the conclusion or preparation of the credit agreement, or where the specific goods or the provision of a specific service are explicitly specified in the credit agreement.’

Article 10 of that directive, entitled ‘Information to be included in credit agreements’, provides in paragraph 2:

‘The credit agreement shall specify in a clear and concise manner:

…

(l) the interest rate applicable in the case of late payments as applicable at the time of the conclusion of the credit agreement and the arrangements for its adjustment and, where applicable, any charges payable for default;

…’

Article 14 of Directive 2008/48, entitled ‘Right of withdrawal’, provides:

‘1. The consumer shall have a period of 14 calendar days in which to withdraw from the credit agreement without giving any reason.

That period of withdrawal shall begin

(a) either from the day of the conclusion of the credit agreement, or

(b) from the day on which the consumer receives the contractual terms and conditions and information in accordance with Article 10, if that day is later than the date referred to in point (a) of this subparagraph.

…

3. If the consumer exercises his right of withdrawal, he shall:

(a) in order to give effect to the withdrawal before the expiry of the deadline referred to in paragraph 1, notify this to the creditor in line with the information given by the creditor pursuant to Article 10(2)(p) by means which can be proven in accordance with national law. The deadline shall be deemed to have been met if that notification, if it is on paper or on another durable medium that is available and accessible to the creditor, is dispatched before the deadline expires; and

(b) pay to the creditor the capital and the interest accrued thereon from the date the credit was drawn down until the date the capital is repaid, without any undue delay and no later than 30 calendar days after the despatch by him to the creditor of notification of the withdrawal. The interest shall be calculated on the basis of the agreed borrowing rate. The creditor shall not be entitled to any other compensation from the consumer in the event of withdrawal, except compensation for any non-returnable charges paid by the creditor to any public administrative body.

…’

Article 15 of that directive, entitled ‘Linked credit agreements’, provides in paragraphs 1 and 2:

‘1. Where the consumer has exercised a right of withdrawal, based on Community law, concerning a contract for the supply of goods or services, he shall no longer be bound by a linked credit agreement.

Article 22 of that directive, entitled ‘Harmonisation and imperative nature of this Directive’, provides, in paragraph 1:

‘In so far as this Directive contains harmonised provisions, Member States may not maintain or introduce in their national law provisions diverging from those laid down in this Directive.’

Article 23 of that directive, entitled ‘Penalties’, provides:

‘Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.’

German law

Paragraph 357a(1) of the Bürgerliches Gesetzbuch (Civil Code; ‘the BGB’), entitled ‘Legal consequences of withdrawal of contracts for financial services’, in the version in force at the time of the facts in the main proceedings, provided:

‘(1) Benefits received must be returned within 30 days.

…

(3) Where a borrower withdraws from a consumer credit agreement, he or she shall pay the agreed interest for the period between the disbursement and repayment of the loan. …’

Paragraph 358 of the BGB, in the version in force at the time of the facts in the main proceedings, was worded as follows:

‘(1) If the consumer has validly withdrawn his or her declaration of intent to conclude an agreement for the supply of goods or the provision of another service by a trader, he or she shall also cease to be bound by his or her declaration of intent to conclude a credit agreement linked to that agreement.

(2) If the consumer has validly withdrawn his or her declaration of intent to conclude a consumer credit agreement on the basis of Paragraph 495(1) or of the first sentence of Paragraph 514(2), he or she shall also cease to be bound by his or her declaration of intent to conclude an agreement for the supply of goods or the provision of another service linked to that consumer credit agreement.

(3) A contract for the supply of goods or the provision of other services and a credit agreement pursuant to subparagraph 1 or 2 shall be linked if the credit serves to finance the other agreement in whole or in part and if they both form an economic unit. An economic unit shall be deemed to exist, in particular, where the trader himself or herself finances the consumer’s counter-performance or, in the case of financing by a third party, where the lender involves the trader in the preparation or conclusion of the credit agreement.

(4) The restoration of the status quo ante with regard to the linked agreement the shall be governed mutatis mutandis … by Paragraph 357. … The lender shall assume in dealings with the consumer the rights and obligations of the trader arising from the linked agreement as regards the legal consequences of withdrawal or restitution if, at the time when the withdrawal takes effect, the amount of the loan has already been paid to the trader.’

The facts, the questions referred and the procedure before the Court

On 1 March 2019 and 30 November 2017, KI, on the one hand, and FA, on the other hand, concluded, respectively with Mercedes-Benz Bank AG and Volkswagen Bank GmbH, credit agreements for the purchase of a motor vehicle for private use. The net amounts of the credit agreements were, respectively, EUR 29 500 and EUR 35 300 and were paid directly to the sellers of the vehicles.

When the credit agreements were concluded, Mercedes-Benz Bank and Volkswagen Bank used the services of the seller of the vehicles as an intermediary.

Neither of the credit agreements specified, as a percentage, the rate of late-payment interest applicable at the time of conclusion of the agreement.

KI and FA paid monthly instalments of the credit, including down payments, totalling, respectively, EUR 8 924.48 and EUR 24 800 under the two agreements.

By letters of 31 October 2019 and 20 July 2020, KI and FA, respectively, withdrew their declarations of intent to conclude a consumer credit agreement.

KI and FA submit that the withdrawal is valid, since the period for exercising that right had not started to run on account of the irregularities vitiating the mandatory information in their contracts.

They each brought actions before the referring court against, respectively, Mercedes-Benz Bank and Volkswagen Bank.

KI is seeking, in essence, repayment of the loan instalments already paid up to the date of his withdrawal and of the down payment made to the seller, that is to say a total of EUR 8 924.48. He is also seeking a declaration that, as a result of his withdrawal, he is no longer liable for interest or capital on his loan.

FA is seeking, in essence, repayment of the monthly instalments already paid in respect of the loan up to the date of his withdrawal and of the down payment made to the seller, that is to say a total amount of EUR 24 800. He is also seeking a declaration that he is not liable for interest on, or instalments in respect of, the capital from the date of withdrawal.

Mercedes-Benz Bank and Volkswagen Bank contend that the respective actions should be dismissed. They submit, in essence, that the actions are inadmissible and raise a plea alleging that the right of withdrawal is time-barred. Mercedes-Benz Bank also alleges unlawful exercise of the right of withdrawal and requests, by way of a counterclaim in the alternative, that KI be required to pay it compensation for the diminished value of the vehicle up to the date of its return and, in addition, compensation for use of 3.92% per annum on the outstanding balance of the loan for the period between the payment of the loan funds to the seller and the return of the vehicle.

In those circumstances, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Is it compatible with EU law, in particular Article 14(1) of Directive [2008/48], if, in the case of withdrawal from a consumer credit agreement linked to a vehicle sales agreement concluded with a brick-and-mortar trader, the amount of compensation for the diminished value to be paid by the consumer to the creditor on return of the vehicle financed is calculated by deducting from the trader’s sales price at the time of purchase of the vehicle by the consumer the trader’s purchase price at the time of the return of the vehicle?

(2) Is the first sentence of Article 14(3)(b) of Directive [2008/48] fully harmonised, and therefore binding on the Member States, as regards consumer credit agreements which are linked to an agreement for the sale of a vehicle?

If the second question is answered in the negative:

(3) Is it compatible with EU law, in particular Article 14(1) of Directive [2008/48], if, following withdrawal from a consumer credit agreement linked to a vehicle sales agreement, the borrower is obliged to pay interest at the contractually agreed borrowing rate to the creditor (or to the seller) for the period between the payment of the loan to the seller of the vehicle being financed and the time when the vehicle is returned?’

25.By decision of 18 April 2023, the present case was stayed pending the judgment in Joined Cases C‑38/21, C‑47/21 and C‑232/21.

26.By letter of 21 December 2023, the Court Registry forwarded to the referring court the judgment in those cases, (3) inviting it to indicate whether, in the light of that judgment, it wished to maintain its request for a preliminary ruling.

27.By document lodged via e-Curia on 10 April 2024, the referring court replied to the Court that it wished to maintain its request for a preliminary ruling and that it considered it necessary to add the following new questions:

‘(4) (a) Must the provisions of Article 10(2)(l) of Directive [2008/48], read in conjunction with point (b) of the second subparagraph of Article 14(1) thereof, be interpreted as meaning that the withdrawal period does not begin to run if the credit agreement does not state, as a specific percentage, the rate of late-payment interest that is applicable at the time of conclusion of the agreement?

If that question is answered in the negative:

(b) Is the failure to include that information capable of affecting the average consumer’s ability to assess the extent of his or her rights and obligations under that directive or his or her decision to conclude the contract and, where relevant, of depriving him or her of the possibility of exercising his or her rights under the same conditions, in essence, as would have prevailed if the information had been provided in a complete and correct manner?

(5) (a) Does the failure to include in the credit agreement, as a specific percentage, the rate of late-payment interest that is applicable at the time of conclusion of that agreement preclude the creditor from relying on the consumer’s abusive exercise of the right of withdrawal on account of the latter’s conduct between the conclusion of the agreement and the exercise of the right of withdrawal, or even after exercising it?

If that question is answered in the negative:

Can the assessment as an abuse of rights be based on the following circumstances in particular:

–the consumer continues to use the financed vehicle pending judicial clarification as to the validity of the withdrawal;

–the consumer refuses to pay compensation for the diminished value of the vehicle resulting from its use?’

Analysis

As requested by the Court, this Opinion will focus exclusively on the second and third questions.

The second question

By its second question, the referring court asks the Court, in essence, whether the first sentence of Article 14(3)(b) of Directive 2008/48 must be interpreted as meaning that it provides for full harmonisation as regards consumer credit agreements linked to a vehicle sales agreement.

In other words, the Court is called upon to determine whether, by the first sentence of Article 14(3)(b), Directive 2008/48 has fully harmonised the obligation on the borrower to pay interest on the capital, including where the credit financed is linked to an agreement for the purchase of goods or services.

In the first place, I would point out that Directive 2008/48, which was adopted in order to promote an effective internal market and a high level of consumer protection with respect to credit, (4) brings about full harmonisation as regards all credit agreements falling within its scope.

The Court has, in that regard, accepted that it follows from Article 22(1) of that directive, read in the light of recitals 9 and 10 thereof, that, as regards credit agreements falling within its scope, the directive is imperative in nature and is intended to ensure uniform application of the rules it contains in all Member States. Accordingly, where it lays down precise obligations, Member States do not have the option of departing from it by means of derogating or stricter national provisions. (5) The justification for that harmonisation is the desire to allow all European consumers to obtain credit while enjoying the same level of protection and to facilitate the cross-border provision of financial services. However, where no such harmonised provisions exist, Member States should remain free to maintain or introduce national legislation. (6)

In the second place, Article 3(n) of Directive 2008/48 defines a ‘linked credit agreement’ as a credit agreement which serves exclusively to finance the purchase of specific goods or services and which forms a commercial unit with the contract for the supply thereof. In practice, the loans granted to finance a private motor vehicle fully meet that definition, provided that they are not excluded from the scope of that directive. (7) The commercial unit comprising the loan and the purchase of goods often takes the form of the simultaneous conclusion of the two contracts or by their close economic dependence. In my view, therefore, the EU legislature wished to regulate that category of credit so that the consumer, who is bound by two interdependent contracts, can still enjoy effective protection, having regard to the specific risks involved in the twofold overlapping of a loan and the purchase of goods.

In the third place, in order to implement that protection, Article 14 of Directive 2008/48 establishes a right of withdrawal, allowing consumers to withdraw from their commitment within a predetermined period, without having to give any reason. The exercise of that right, which is intended both to mitigate the possibly impulsive nature of the decision to take on debt and to ensure that sufficient information is provided on the terms and conditions of the credit, gives rise to concomitant obligations. Accordingly, the first sentence of Article 14(3)(b) of that directive requires the consumer, in the event of withdrawal, to repay the capital and the interest accrued between the date on which the funds are made available and that of their return.

Nevertheless, the fact remains that that provision does not establish what is to happen to the financed goods or whether there is any interaction between the linked credit agreement and the vehicle sales agreement. In my view, the spirit of Directive 2008/48 is to ensure that the right of withdrawal remains effective, while allowing Member States a measure of discretion as regards the implementation of that withdrawal in the specific context of linked credit, which means that that directive is not intended to fully harmonise all the legal consequences which may arise.

Recital 35 of that directive is consistent with that approach, stating that that directive should be without prejudice to any regulation by Member States of questions concerning the return of the goods financed by the credit or any related questions. (8) Recital 9 of that directive also states that where no harmonised provisions exist, Member States should remain free to maintain or introduce national provisions, inter alia in the event of cancellation of a contract for the sale of goods or supply of services if the consumer exercises his right of withdrawal from the credit agreement.

In the absence of specific EU rules governing the matter, the Court held that the rules implementing the consumer protection provided for by Directive 2008/48 are a matter for the domestic legal order of the Member States in accordance with the principle of the procedural autonomy of the Member States. However, those rules must not be less favourable than those governing similar domestic actions (principle of equivalence); nor may they be framed in such a way as to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness). (9)

In that regard, it is significant that Article 15(1) of Directive 2008/48 is the only provision specifically concerned with the situation where a consumer exercises his or her right of withdrawal in respect of a contract for the supply of goods or services, which implies, a contrario, that the directive is deficient in the opposite scenario, in which withdrawal from the credit itself occurs first. (10)

In short, I consider that although Directive 2008/48 brings about full harmonisation as regards credit agreements, through the first sentence of Article 14(3)(b), it does not exhaustively govern all the consequences of withdrawal where the credit is linked to the purchase of a vehicle. Member States are therefore permitted, in compliance with the principles of effectiveness and equivalence, to frame the rules for exercising the right of withdrawal for those linked credit agreements.

In the light of the foregoing, I propose that the Court’s answer should be that the first sentence of Article 14(3)(b) of Directive 2008/48 does not provide for full harmonisation as regards consumer credit agreements linked to a vehicle sales agreement.

The third question

By its third question, the referring court asks, in the event that the second question is answered in the negative, whether it is compatible with EU law, in particular Article 14(1) of Directive 2008/48/EC, if, following withdrawal from a consumer credit agreement linked to a vehicle sales agreement, the borrower is obliged to pay interest at the contractually agreed borrowing rate to the creditor (or to the seller) for the period between the payment of the loan to the seller of the vehicle being financed and the time when the vehicle is returned.

The purpose of Article 14 of Directive 2008/48

I would point out that Article 14(1) of Directive 2008/48 establishes a right of withdrawal for consumers, who can exercise that right within a period of 14 calendar days, without having to give any reason for their decision.

As regards the objective pursued by Article 14 of Directive 2008/48, it is, first, to allow a consumer to choose the agreement best suited to his or her needs and, therefore, to withdraw from an agreement that has been concluded but proves to be unsuitable in the course of the cooling-off period during which the right of withdrawal may be exercised. Second, the objective of point (b) of the second subparagraph of Article 14(1) of that directive is to ensure that consumers receive all the information necessary to assess the extent of their contractual obligations and to penalise creditors who fail to provide them with the information listed in Article 10 thereof. (11) In my view, that provision is therefore intended primarily to provide consumers with a cooling-off period which is sufficient to determine whether the credit is actually consistent with their needs and capacities, so that they can guard themselves against unsuitable commitments.

The consequences of the right to withdraw from a linked credit agreement

It is apparent from the analysis carried out in relation to the second question raised by the referring court (12) that the first sentence of Article 14(3)(b) of Directive 2008/48 does not fully harmonise the consequences of exercising the right of withdrawal where the credit is linked to a contract for the supply of goods, such as the purchase of a vehicle.

Under Article 14(3)(b) of that directive, a consumer who withdraws from ‘traditional credit’ is liable for the payment of interest calculated at the agreed rate for the period between the funds being made available and their repayment in full, as well as for repayment of the capital. By analogy, I consider that, where the credit is intended to finance the purchase of goods and the consumer withdraws, it is logical to provide for an obligation on his or her part to pay interest for the period from the funds actually being made available until the goods are returned or the credit is terminated.

I consider that the basis for that requirement is readily identifiable: in providing financial resources, a creditor assumes the risk of monetary depreciation and is deprived of the immediate use of those funds. On this view, interest is the normal return on the capital advanced. To systematically deprive the creditor of interest would be tantamount to introducing ‘free credit’ for the borrower, who would derive an undue benefit without having to provide anything in return. (13) In my view, such a situation upsets the contractual balance and is akin to unjust enrichment for the purposes of the common principles of civil law.

In that regard, it is important to recall that the principle of the prohibition of unjust enrichment, recognised by the case-law of the Court and existing in most national legal orders, requires that no party should be unduly enriched at the expense of another. Accordingly, the Court has already held that, according to the principles common to the laws of the Member States, a person who has suffered a loss which increases the wealth of another person without there being any legal basis for that enrichment has the right, as a general rule, to restitution from the person enriched equivalent to the amount of that loss.

With regard to the unjust enrichment of the European Union, the Court has held that, while the FEU Treaty does not make express provision for a means of pursuing that type of action, if Article 268 and the second paragraph of Article 340 TFEU were to be construed as excluding that possibility, the result would be contrary to the principle of effective judicial protection. Actions for unjust enrichment of the European Union, brought under those articles, require proof of enrichment on the part of the defendant for which there is no valid legal basis (14) and proof of impoverishment on the part of the applicant which is linked to that enrichment. (15)

In applying that principle (16) to the circumstances of the main proceedings, (17) it could be argued that allowing the borrower to benefit without charge from the loaned funds during the period preceding the return of the goods would in fact be tantamount to conferring on him or her an economic advantage ‘without cause, reason or, at the very least, justification’. (18) During that period, the creditor has irrevocably provided financial resources to the borrower, without being able either to dispose of those funds or to allocate them to other potentially lucrative transactions, while bearing the risks inherent in making those funds available (in particular monetary depreciation and the opportunity cost linked to the provision of the funds).

It therefore seems to me that the obligation imposed on the borrower to pay interest calculated for the actual period during which the funds are made available is a necessary corrective mechanism. It serves to restore the contractual balance by preventing one party, in exercising his or her right of withdrawal, from making an undue gain to the detriment of the other party and, in that way, guarantees a fair distribution of the costs and benefits arising from the, albeit partial and temporary, performance of the credit agreement.

Contractual balance and the principle of proportionality

The justification for that obligation – namely to pay interest in the event of withdrawal from a credit agreement linked to the purchase of a vehicle – appears to me to be compatible with the logic of the relevant case-law of the Court, which emphasises, as a whole, that the objective pursued by Directive 2008/48 consists in providing, as regards consumer credit, full and mandatory harmonisation in certain key areas, which is deemed necessary in order to ensure that all consumers in the European Union enjoy a high and equivalent level of protection of their interests, with a view to facilitating the emergence of a well-functioning internal market in consumer credit. (19)

The aim of maintaining a contractual balance which reconciles the effective protection of consumer interests with the emergence of a well-functioning internal market in consumer credit, while complying with the principle of proportionality, is generally perceptible in the case-law relating to the right of withdrawal, including beyond the legal framework of Directive 2008/48. By way of example, the Court has held that Article 14(1) of Directive 2008/48 precludes national legislation requiring the consumer to return the goods financed by the credit or to give the creditor formal notice to take back those goods without that creditor being required, at the same time, to repay the monthly instalments of the credit already paid by the consumer. (20)

Moreover, with regard to a distance contract, the Court held that, although Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (21) is designed to protect the consumer in the particular situation of such a contract, it is not intended to grant him or her rights going beyond what is necessary to allow him or her effectively to exercise his or her right of withdrawal. That is, in particular, the case where the consumer has made use of the goods in a manner incompatible with the principles of civil law, such as those of good faith or the prohibition of unjust enrichment. (22)

That aim of maintaining a contractual balance, in accordance with the principle of proportionality, characterises the Court’s interpretation of Article 23 of Directive 2008/48, which allows the Member States to lay down penalties to ensure compliance with the information obligations imposed on creditors. Those penalties, which must be effective and proportionate, may extend to the forfeiture of entitlement to interest and charges if the creditor fails to comply with the information obligations laid down by Article 10(2) of Directive 2008/48, in so far as such omissions compromise the ability of a consumer to assess the extent of his or her liability. (23) However, the Court qualifies that position by stating that ‘the imposition, in accordance with national law, of such a penalty, having serious consequences for the creditor in the event of failure to include those items of information referred to in Article 10(2) of Directive 2008/48 which, by their nature, cannot have a bearing on the consumer’s ability to assess the extent of his liability, … cannot be considered to be proportionate’. (24)

) Accordingly, in my view, the Court accepts, on the basis of the principle of proportionality, that the option provided for in Article 23 of Directive 2008/48 must not result in the creditor being systematically deprived of all remuneration, unless its omissions are so serious that they fundamentally undermine the consumer’s right to clear and reliable information. (25)

Accordingly, the consumer, the weaker party to the contract, enjoys protection that is enhanced by means of the penalty imposed on the creditor. However, that protection is not unlimited and applies only where the creditor fails to fulfil a ‘vitally important’ information obligation in the context of Directive 2008/48. (26) It is not a question of creating an excessive imbalance between a consumer exercising his or her right of withdrawal and a creditor. The right of withdrawal and its consequences must not undermine market efficiency in the field of consumer credit.

Application to the present case

In the present case, I consider that the aim of ensuring that all consumers in the European Union enjoy a high and equivalent level of protection of their interests in order to facilitate the emergence of a well-functioning internal market in consumer credit is maintained in the main proceedings if it is accepted that national legislation may provide for the repayment of interest on the capital in the event of withdrawal from a linked credit agreement.

It should nevertheless be borne in mind, as has already been stated in the answer to the second question referred, (27) that the rules implementing the right of withdrawal from a credit agreement linked to the purchase of a vehicle – in particular the obligation on the borrower to pay interest to the creditor – must not, in accordance with the principle of equivalence, be less favourable than those governing similar domestic actions, nor, in accordance with the principle of effectiveness, be framed in such a way as to make it impossible or excessively difficult, in practice, to exercise the rights conferred by EU law.

I conclude that, in so far as Directive 2008/48 does not exhaustively govern the consequences of withdrawal from credit linked to the purchase of goods, national legislation may require the borrower to pay interest for the period during which the funds are used.

Accordingly, Article 14(1) of Directive 2008/48 does not, in my view, preclude the borrower from being required to pay the interest provided for in respect of the period between the funds being made available and the return of the goods or the end of the credit, where the right of withdrawal has been exercised. At the same time, Member States retain the power, under Article 23 of Directive 2008/48, to impose penalties on the creditor in the event of failure to comply with the information obligations laid down in Article 10(2) of that directive, provided that those penalties do not result in a disproportionate breach of any reciprocal commitments and do not undermine the primary aim of that directive, namely effective consumer protection.

In those circumstances, I propose that the Court’s answer should be that EU law, in particular Article 14(1) of Directive 2008/48, does not preclude the borrower, following withdrawal from a consumer credit agreement linked to a vehicle sales agreement, from being obliged to pay interest at the contractually agreed borrowing rate to the creditor (or to the seller) for the period between the payment of the loan to the seller of the vehicle being financed and the time when that vehicle is returned.

Conclusion

In the light of the foregoing considerations, I propose that the Court answer as follows the second and third questions referred by the Landgericht Ravensburg (Regional Court, Ravensburg, Germany):

(1)The first sentence of Article 14(3)(b) 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 it does not provide for full harmonisation as regards consumer credit agreements linked to a vehicle sales agreement.

(2)EU law, and in particular Article 14(1) of Directive 2008/48,

must be interpreted as meaning that it does not preclude the borrower, following withdrawal from a consumer credit agreement linked to a vehicle sales agreement, from being obliged to pay interest at the contractually agreed borrowing rate to the creditor (or to the seller) for the period between the payment of the loan to the seller of the vehicle being financed and the time when the vehicle is returned.

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Original language: French.

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Directive 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).

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Judgment 21 December 2023, BMW Bank and Others (C‑38/21, C‑47/21 and C‑232/21, ‘the judgment in BMW Bank’, EU:C:2023:1014).

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See, inter alia, judgment of 16 July 2020, Soho Group (C‑686/19, EU:C:2020:582, paragraph 49): ‘Directive 2008/48 was adopted in order both to ensure that all consumers in the European Union enjoy a high and equivalent level of protection of their interests and to facilitate the emergence of a well-functioning internal market in consumer credit’.

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See, to that effect, judgments of 12 July 2012, SC Volksbank România (C‑602/10, EU:C:2012:443, paragraph 38), and of 5 September 2019, Pohotovost’ (C‑331/18, EU:C:2019:665, paragraph 49).

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See recital 9 of Directive 2008/48.

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See Article 2(2) of Directive 2008/48.

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See judgment in BMW Bank (paragraph 302).

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See judgment in BMW Bank (paragraph 303 and the case-law cited).

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See, in that regard, Opinion of Advocate General Hogan in Volkswagen Bank and Others (C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:629, point 126).

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See judgment of 9 September 2021, Volkswagen Bank (C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:736, paragraphs 123 and 124), and the judgment in BMW Bank (paragraph 288).

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See points 30 to 38 of this Opinion.

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See Opinion of Advocate General Hogan in Volkswagen Bank and Others (C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:629, point 124).

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It should be noted in that regard that, on the basis of the principle of subsidiarity, where the enrichment or impoverishment of assets is directly justified by a legal rule, the transfer of the assets has, in any event, a cause, which therefore excludes an action de in rem verso. Thus, by way of example, in Belgian civil law, that action ‘may only be brought if the situation to which it relates is not governed by another body of rules resulting from the law, a contract, a unilateral legal act or an action ex delicto’ (see Van Ommeslaghe, P., De Page, Traité de droit civil belge – Tome II – Les obligations – Vol 2, Bruylant, Brussels, 2013, pp. 1141 and 1151).

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See, to that effect, judgment of 9 July 2020, Czech Republic v Commission (C‑575/18 P, EU:C:2020:530, paragraph 82).

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On the issues relating to the general principles of private law and unjust enrichment (in particular as regards the Luxembourg legal order), see Kinsch, P., ‘Les principes généraux du droit comme éléments de l’ordre juridique luxembourgeois’, Liber Amicorum Xavier Dieux, Larcier-Intersentia, Brussels, 2022, pp. 883-884.

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With respect to transactions resulting in unjust enrichment and involving more than two parties, see Schlechtriem, P., Cohen, C., and Hornung, R., ‘Restitution and Unjust Enrichment in Europe’, European Review of Private Law, Vol. 9, issue 2/3, 2001, pp. 408-415.

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Wording borrowed from Londers, G., Mosselmans, S. and Bossuyt, A., ‘Deux principes généraux du droit issus du droit national et du droit communautaire: l’enrichissement sans cause ou l’enrichissement injustifié et l’interdiction de l’abus de droit’, Actes du colloque pour le cinquantième anniversaire des traités de Rome, Luxembourg, 26 March 2007, Office for Official Publications of the European Communities, 2007, p. 97.

It should be noted on this point that, in its judgment of 10 October 2001, Corus UK v Commission (T‑171/99, EU:T:2001:249, paragraph 55), the General Court held, in the context of the calculation of interest, that ‘a failure to reimburse interest could result … in the unjust enrichment of the Community, which would be contrary to the general principles of Community law’ (citing the judgment of 10 July 1990, Greece v Commission (Case C‑259/87, EU:C:1990:287, paragraph 26)).

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See judgment of 9 September 2021, Volkswagen Bank (C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:736, paragraph 72 and the case-law cited).

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See judgment in BMW Bank (paragraph 307).

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OJ 1997 L 144, p. 19.

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See judgment of 3 September 2009, Messner (C‑489/07, EU:C:2009:502, paragraphs 25 and 26).

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Judgment of 9 November 2016, Home Credit Slovakia (C‑42/15, ‘the judgment in Home Credit Slovakia’, EU:C:2016:842, paragraph 69).

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Judgment in Home Credit Slovakia (paragraph 72).

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Advocate General Hogan points out in his Opinion in Volkswagen Bank and Others (C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:629) that Member States may provide, in the context of the penalties which they must introduce in accordance with Article 23 of Directive 2008/48, that the omission of certain obligatory information from the credit agreement results in the loss of the borrowing interest. However, it is clear from the terms of that provision that the penalties imposed in the event of a breach of EU law must be proportionate. All of this means, according to the Court’s case-law, that the severity of those penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular, by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality (point 123 of that opinion, referring to the judgment in Home Credit Slovakia (paragraph 63)). More recently, in its judgment of 13 February 2025, Lexitor (C‑472/23, EU:C:2025:89, paragraphs 56 and 57), the Court held, inter alia, that the penalty which national legislation must provide for in the event of failure to comply with the information obligation under Article 10(2) of Directive 2008/48 may be a uniform penalty, since it is absolutely essential for the consumer to have all the information necessary to assess the scope of his or her commitment.

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See judgment in Home Credit Slovakia (paragraph 69).

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See point 36 of this Opinion.