6.2.2023

Official Journal of the European Union

C 45/10

(Case C-715/22)

(2023/C 45/18)

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: QR

Defendant: Mercedes-Benz Bank AG

Questions referred

1.Is it compatible with EU law if, under national law, in the case of a credit agreement linked to a contract of sale, following the effective exercise of the consumer’s right of withdrawal under Article 14(1) of Directive 2008/48/EC, (1)

(a)a consumer’s claim against the creditor for repayment of the loan instalments paid does not arise until the consumer has, for his part, returned the object purchased to the creditor or provided proof that he has dispatched it to the creditor?

(b)in accordance with the first sentence of Paragraph 358(4), read in conjunction with the first sentence, first option, of Paragraph 357(4), of the Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’), the consumer is required to return the vehicle to the creditor at the latter’s place of business?

(c)there is no default of acceptance of the vehicle on the part of the creditor if the latter is willing to obtain the vehicle by way of advance performance but contests the substantive conditions for a valid withdrawal?

(d)an action brought by the consumer for repayment of the loan instalments paid by the consumer after having returned the financed vehicle is to be dismissed as currently unfounded if the creditor has not unduly delayed in accepting the object purchased?

2.Does it follow from EU law that the national rules and principles set out in points (1)(a) to (d) are inapplicable unless they can be interpreted in accordance with the Directive?

3.In the event that a consumer’s reliance on his right of withdrawal under Article 14(1) of Directive 2008/48/EC may also be regarded as abusive where one of the mandatory particulars provided for in Article 10(2) of Directive 2008/48/EC has not been duly communicated in the credit agreement or subsequently, can the assessment as an abuse of rights be based on the following factors in particular?

(a)The consumer continues to use the financed vehicle pending judicial clarification as to the validity of the withdrawal.

(b)The consumer refuses to pay compensation for the use of the vehicle.

(c)The agreement has already ended prematurely or by lapse of time when the withdrawal is declared, and the bank has waived its guarantees.

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).