21 December 2023 (*1)

(Reference for a preliminary ruling – Consumer protection – Leasing agreement for a motor vehicle without an obligation to purchase – Directive 2008/48/EC – Article 2(2)(d) – Concept of a leasing agreement without an obligation to purchase the object of the agreement – Directive 2002/65/EC – Article 1(1) and Article 2(b) – Concept of a contract for financial services – Directive 2011/83/EU – Article 2(6) and Article 3(1) – Concept of a service contract – Article 2(7) – Concept of a distance contract – Article 2(8) – Concept of an off-premises contract – Article 16(l) – Exception from the right of withdrawal in respect of the provision of car rental services – Credit agreement for the purchase of a motor vehicle – Directive 2008/48 – Article 10(2) – Requirements relating to the information that must be stated in the agreement – Presumption of compliance with the obligation to provide information in the case of use of a statutory information model – Absence of horizontal direct effect of a directive – Article 14(1) – Right of withdrawal – Start of the withdrawal period in the event of incomplete or incorrect information – Abusive nature of the exercise of the right of withdrawal – Time-barring of the right of withdrawal – Obligation to return the vehicle in advance in the event of exercise of the right of withdrawal in respect of a linked credit agreement)

In Joined Cases C‑38/21, C‑47/21 and C‑232/21,

THREE REQUESTS for a preliminary ruling under Article 267 TFEU from the Landgericht Ravensburg (Regional Court, Ravensburg, Germany), made by decision of 30 December 2020, received at the Court on 22 January 2021 and supplemented by decision of 24 August 2021, received at the Court on 1 September 2021 (Case C‑38/21), by decision of 8 January 2021, received at the Court on 28 January 2021 (Case C‑47/21), and by decision of 19 March 2021, received at the Court on 12 April 2021 (Case C‑232/21), in the proceedings

BMW Bank GmbH (C‑38/21),

CR,

AY,

ML,

BQ

Volkswagen Bank GmbH,

Audi Bank (C‑232/21),

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, L. Bay Larsen, Vice-President, K. Jürimäe, C. Lycourgos, E. Regan, F. Biltgen, N. Piçarra, Z. Csehi, Presidents of Chambers, M. Safjan (Rapporteur), S. Rodin, P.G. Xuereb, I. Ziemele, J. Passer, D. Gratsias and M.L. Arastey Sahún, Judges,

Advocate General: A.M. Collins,

Registrar: M. Krausenböck, Administrator,

having regard to the written procedure and further to the hearing on 7 September 2022,

after considering the observations submitted on behalf of:

–CR, AY, ML and BQ by M. Basun, D. Er and A. Esser, Rechtsanwälte,

–BMW Bank GmbH, by A. Ederle and R. Hall, Rechtsanwälte,

–Volkswagen Bank GmbH and Audi Bank, by I. Heigl, T. Winter and B. Zerelles, Rechtsanwälte,

–the German Government, by J. Möller, U. Bartl, M. Hellmann and U. Kühne, acting as Agents,

–the European Commission, by G. Goddin, B.-R. Killmann and I. Rubene, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 February 2023,

gives the following

1These requests for a preliminary ruling concern the interpretation of Article 2(a) and (b) of 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), Article 3(c), Article 10(2)(l), (p), (r) and (t) and Article 14(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), Article 2(7), (9) and (12) and Article 16(l) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, and the second paragraph of Article 267 TFEU.

2The requests have been made in proceedings between VK and BMW Bank GmbH (Case C‑38/21), F.F. and C. Bank AG (Case C‑47/21), and CR and Volkswagen Bank GmbH, and AY, ML and BQ, on the one hand, and Audi Bank, on the other (Case C‑232/21) concerning the exercise, by VK, F.F., CR, AY, ML and BQ, of the right of withdrawal relating to agreements which they concluded, in their capacity as consumers, with those banks.

Legal context

European Union law

Recitals 14, 15 and 19 of Directive 2002/65 read as follows:

‘(14) This Directive covers all financial services liable to be provided at a distance. However, certain financial services are governed by specific provisions of Community legislation which continue to apply to those financial services. However, principles governing the distance marketing of such services should be laid down.

(15) Contracts negotiated at a distance involve the use of means of distance communication which are used as part of a distance sales or service-provision scheme not involving the simultaneous presence of the supplier and the consumer. The constant development of those means of communication requires principles to be defined that are valid even for those means which are not yet in widespread use. Therefore, distance contracts are those the offer, negotiation and conclusion of which are carried out at a distance.

…

(19) The supplier is the person providing services at a distance. This Directive should however also apply when one of the marketing stages involves an intermediary. Having regard to the nature and degree of that involvement, the pertinent provisions of this Directive should apply to such an intermediary, irrespective of his or her legal status.’

Article 1 of Directive 2002/65, entitled ‘Object and scope’, provides, in paragraph 1:

‘The object of this Directive is to approximate the laws, regulations and administrative provisions of the Member States concerning the distance marketing of consumer financial services.’

According to Article 2 of that directive, entitled ‘Definitions’:

‘For the purposes of this Directive:

“distance contract” means any contract concerning financial services concluded between a supplier and a consumer under an organised distance sales or service-provision scheme run by the supplier, who, for the purpose of that contract, makes exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

“financial service” means any service of a banking, credit, insurance, personal pension, investment or payment nature;

…’

Article 6 of that directive, entitled ‘Right of withdrawal’, provides:

‘1. The Member States shall ensure that the consumer shall have a period of 14 calendar days to withdraw from the contract without penalty and without giving any reason. …

…

…

contracts whose performance has been fully completed by both parties at the consumer’s express request before the consumer exercises his [or her] right of withdrawal.

…’

Recitals 7 to 10, 31, 34 and 35 of Directive 2008/48 state:

‘(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 75000. 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] …

(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 Directive 2008/48, 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 2 of that directive, entitled ‘Scope’, provides:

‘1. This Directive shall apply to credit agreements.

…

(d) hiring or leasing agreements where an obligation to purchase the object of the agreement is not laid down either by the agreement itself or by any separate agreement; such an obligation shall be deemed to exist if it is so decided unilaterally by the creditor;

…’

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

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

…

(c) “credit agreement” means an agreement whereby a creditor grants or promises to grant to a consumer credit in the form of a deferred payment, loan or other similar financial accommodation, except for agreements for the provision on a continuing basis of services or for the supply of goods of the same kind, where the consumer pays for such services or goods for the duration of their provision by means of instalments;

…

(i) “annual percentage rate of charge” means the total cost of the credit to the consumer, expressed as an annual percentage of the total amount of credit, where applicable including the costs referred to in Article 19(2);

…

(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 Directive 2008/48, entitled ‘Information to be included in credit agreements’, is worded as follows, 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;

…

(p) the existence or absence of a right of withdrawal, the period during which that right may be exercised and other conditions governing the exercise thereof, including information concerning the obligation of the consumer to pay the capital drawn down and the interest in accordance with Article 14(3)(b) and the amount of interest payable per day;

…

(r) the right of early repayment, the procedure for early repayment, as well as, where applicable, information concerning the creditor’s right to compensation and the way in which that compensation will be determined;

…

(t) whether or not there is an out-of-court complaint and redress mechanism for the consumer and, if so, the methods for having access to it;

…’

Article 14 of that directive, 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.

…

(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 dispatch 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 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.’

…

Recitals 20 to 22, 37 and 49 of Directive 2011/83 read as follows:

‘(20) The definition of distance contract should cover all cases where a contract is concluded between the trader and the consumer under an organised distance sales or service-provision scheme, with the exclusive use of one or more means of distance communication (such as mail order, Internet, telephone or fax) up to and including the time at which the contract is concluded. That definition should also cover situations where the consumer visits the business premises merely for the purpose of gathering information about the goods or services and subsequently negotiates and concludes the contract at a distance. By contrast, a contract which is negotiated at the business premises of the trader and finally concluded by means of distance communication should not be considered a distance contract. Neither should a contract initiated by means of distance communication, but finally concluded at the business premises of the trader be considered a distance contract. … The notion of an organised distance sales or service-provision scheme should include those schemes offered by a third party other than the trader but used by the trader, such as an online platform. It should not, however, cover cases where websites merely offer information on the trader, his goods and/or services and his contact details.

(21) An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader, for example at the consumer’s home or workplace. In an off-premises context, the consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the trader’s visit. The definition of an off-premises contract should also include situations where the consumer is personally and individually addressed in an off-premises context but the contract is concluded immediately afterwards on the business premises of the trader or through a means of distance communication. The definition of an off-premises contract should not cover situations in which the trader first comes to the consumer’s home strictly with a view to taking measurements or giving an estimate without any commitment of the consumer and where the contract is then concluded only at a later point in time on the business premises of the trader or via means of distance communication on the basis of the trader’s estimate. In those cases, the contract is not to be considered as having been concluded immediately after the trader has addressed the consumer if the consumer has had time to reflect upon the estimate of the trader before concluding the contract. Purchases made during an excursion organised by the trader during which the products acquired are promoted and offered for sale should be considered as off-premises contracts.

(22) Business premises should include premises in whatever form (such as shops, stalls or lorries) which serve as a permanent or usual place of business for the trader. … The business premises of a person acting in the name or on behalf of the trader as defined in this Directive should be considered as business premises within the meaning of this Directive.

…

(37) … Concerning off-premises contracts, the consumer should have the right of withdrawal because of the potential surprise element and/or psychological pressure. …

…

(49) Certain exceptions from the right of withdrawal should exist, both for distance and off-premises contracts. … The right of withdrawal should neither apply to goods made to the consumer’s specifications … The granting of a right of withdrawal to the consumer could also be inappropriate in the case of certain services where the conclusion of the contract implies the setting aside of capacity which, if a right of withdrawal were exercised, the trader may find difficult to fill. This would for example be the case where reservations are made at hotels or concerning holiday cottages or cultural or sporting events.’

Article 2 of that directive, entitled ‘Definitions’, provides:

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

…

(2) “trader” means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive;

…

(5) “sales contract” means any contract under which the trader transfers or undertakes to transfer the ownership of goods to the consumer and the consumer pays or undertakes to pay the price thereof, including any contract having as its object both goods and services;

…

(6) “service contract” means any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof;

…

(7) “distance contract” means any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

(8) “off-premises contract” means any contract between the trader and the consumer:

(a) concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

(b) for which an offer was made by the consumer in the same circumstances as referred to in point (a);

(c) concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; or

(d) concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;

…

(9) “business premises” means:

(a) any immovable retail premises where the trader carries out his activity on a permanent basis; or

(b) any movable retail premises where the trader carries out his activity on a usual basis;

…

(12) “financial service” means any service of a banking, credit, insurance, personal pension, investment or payment nature;

…’

the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services;

…

(e) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated …;

…

(g) the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the services and, where applicable, the trader’s complaint handling policy;

…

(o) the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;

…’

Article 9 of Directive 2011/83, entitled ‘Right of withdrawal’, provides:

‘1. Save where the exceptions provided for in Article 16 apply, the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason, and without incurring any costs other than those provided for in Article 13(2) and Article 14.

(a) in the case of service contracts, the day of the conclusion of the contract;

…’

Under Article 16 of that directive, entitled ‘Exceptions from the right of withdrawal’:

‘Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance and off-premises contracts as regards the following:

…

(c) the supply of goods made to the consumer’s specifications or clearly personalised;

…

(l) the provision of accommodation other than for residential purpose, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance;

…’

German law

The Basic Law

Article 25 of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany) (‘the Basic Law’) is worded as follows:

‘The general rules of public international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.’

The Civil Code

Paragraph 242 of the Bürgerliches Gesetzbuch (Civil Code) (‘the BGB’), entitled ‘Performance in good faith’, provides:

‘The obligor must perform in a manner consistent with good faith, taking into account accepted practice.’

Paragraph 247 of the BGB, entitled ‘Base rate’, provides:

‘(1) The base rate shall be 3.62%. On 1 January and 1 July of each year, it shall be adjusted by the percentage points by which the reference value has increased or decreased since the last adjustment. The reference value shall correspond to the interest rate set by the European Central Bank for the most recent main refinancing operation carried out prior to the first calendar day of the relevant six-month period.

(2) The Deutsche Bundesbank [(German Central Bank)] shall publish the current base rate in the Bundesanzeiger [(German Federal Gazette)] immediately after the dates specified in the second sentence of the first subparagraph.’

Paragraph 273 of the BGB, entitled ‘Right of retention’, provides, in subparagraph 1:

‘If the obligor has a claim that is due against the obligee under the same legal relationship as that on which the obligation is based, he or she may, unless the debt relationship provides otherwise, refuse the performance owed by him or her, until the performance owed to him or her is rendered (right of retention).’

Under Paragraph 274 of the BGB, entitled ‘Effects of the right of retention’:

‘(1) As regards the obligee’s action, the only effect of invoking the right of retention is that the obligor must be ordered to perform in return for receipt of the service due to him or her (simultaneous performance).

(2) On the basis of such an order, the obligee may apply for enforcement of his or her claim, without performance of the obligation incumbent on him or her, if the obligor is late in accepting it.’

Paragraph 288 of the BGB, entitled ‘Late-payment interest and other compensation’, is worded as follows, in subparagraph 1:

‘Any debt of money shall accrue interest during the period of delay. The rate of late-payment interest shall be five percentage points per annum above the base rate.’

Paragraph 293 of the BGB, entitled ‘Default in acceptance’, provides:

‘The obligee is in default if he or she does not accept the performance offered to him or her.’

Paragraph 294 of the BGB, entitled ‘Actual offer’, provides:

‘The obligee must actually be offered performance exactly as it is to be rendered.’

Under Paragraph 295 of the BGB, entitled ‘Verbal offer’:

‘A verbal offer made by the obligor shall be sufficient if the obligee has declared that he or she will not accept performance of the obligation, or if an action by the obligee is necessary for the performance of the obligation, in particular if he or she is to withdraw the goods. An offer to perform the service shall be equivalent to a request to the obligee to take the necessary steps.’

Paragraph 312b of the BGB, entitled ‘Off-premises contracts’, is worded as follows:

‘(1) Off-premises contracts are contracts

concluded in the simultaneous physical presence of the consumer and the trader, in a place which is not the business premises of the trader,

(2) for which an offer was made by the consumer under the circumstances referred to in point 1,

(3) concluded on the business premises of the trader or through any means of distance communication, but where the consumer was, immediately beforehand, personally and individually addressed, in a place outside of the business premises of the trader in the simultaneous physical presence of the consumer and the trader, or

(4) concluded during an excursion organised by the trader or with his or her assistance in order to promote and sell goods or services to the consumer and in order to conclude the corresponding contracts with that consumer.

Persons acting in the name or on behalf of the trader are to be treated in the same way as the trader.

(2) Business premises within the meaning of subparagraph 1 are any immovable retail premises where the trader carries out his or her activity on a permanent basis, and any movable retail premises where the trader carries out his or her activity on a usual basis. Retail premises where the person who is acting in the name or on behalf of the trader carries out his or her activity on a permanent or on a usual basis are equivalent to the premises of the trader.’

Paragraph 312c of the BGB, entitled ‘Distance contracts’, provides:

‘(1) Distance contracts are contracts for which the trader, or a person acting in the name or on behalf of the trader, and the consumer make exclusive use of means of distance communication to negotiate and conclude the contract, except where the conclusion of the contract does not take place in the context of a sales or service-provision scheme organised for distance sales.

(2) Means of distance communication within the meaning of this Code are all means of communication which can be used to prepare the ground for or conclude a contract without the simultaneous physical presence of the parties to the contract, such as letters, catalogues, telephone calls, faxes, emails, text messages sent via the mobile telephone service (SMS) as well as broadcasting and telemedia.’

Paragraph 312g of the BGB, entitled ‘Right of withdrawal’, provides:

‘(1) In the case of off-premises contracts and of distance contracts, the consumer has a right of withdrawal pursuant to Paragraph 355.

(2) Unless otherwise agreed by the parties, the right of withdrawal shall not exist for the following contracts:

…

9. contracts for the provision of services in the fields of accommodation other than for residential purposes, transport of goods, motor vehicle rental and catering and for the provision of other services related to leisure activities, if the contract provides for a specific date or period of performance.

…’