Case C‑127/15

Verein für Konsumenteninformation

v

INKO, Inkasso GmbH

(Request for a preliminary ruling from the Oberster Gerichtshof)

(Reference for a preliminary ruling — Directive 2008/48/EC — Consumer protection — Consumer credit — Article 2(2)(j) — Rescheduling agreements — Deferred payment, free of charge — Article 3(f) — Credit intermediaries — Debt recovery companies acting on behalf of lenders)

Summary — Judgment of the Court (Third Chamber), 8 December 2016

1. Consumer protection—Credit agreements for consumers—Directive 2008/48—Scope—Credit rescheduling agreement concluded between a consumer and a lender through an intermediary, the consumer undertaking to pay charges not provided for by the initial credit agreement—Included

   (European Parliament and Council Directive 2008/48, Art. 2(2)(j))

2. Consumer protection—Credit agreements for consumers—Directive 2008/48—Pre-contractual obligations—Not applicable to credit intermediaries acting in an ancillary capacity—Concept of such credit intermediaries—Debt collection agency having concluded, on behalf of a creditor, a rescheduling agreement for an unpaid credit with a consumer—Included—Determination a matter for the national court

   (European Parliament and Council Directive 2008/48, Arts 3(f) and 5 to 7)

1.  Article 2(2)(j) of Directive 2008/48 on credit agreements for consumers must be interpreted as meaning that a credit rescheduling agreement, which is concluded, following the consumer’s default, between that consumer and the lender through a debt collection agency, is not agreed to ‘free of charge’, within the meaning of that article, where, by that agreement, the consumer undertakes to repay the total amount of that credit and to pay interest and costs that were not provided for by the initial contract under which that credit was granted.

   In that regard, a rescheduling agreement, which provides for the obligation of a consumer to pay the costs of a credit recovery agency, not being provided for by the initial credit agreement, cannot be regarded as being linked to a deferred payment that has been agreed to free of charge, within the meaning of Article 2(2)(j) of Directive 2008/48.

   (see paras 39, 41, operative part 1)

2.  Article 3(f) and Article 7 of Directive 2008/48 on credit agreements for consumers must be interpreted as meaning that a debt collection agency which concludes, on behalf of a lender, a rescheduling agreement for an unpaid credit, but which acts as a credit intermediary only in an ancillary capacity, which is for the referring court to determine, must be regarded as being a credit intermediary within the meaning of Article 3(f) and is not subject to the obligation to provide the consumer with pre-contractual information under Articles 5 and 6 of that directive.

   In that regard, in the first place, under Article 3(f), a credit intermediary is a natural or legal person who is not acting as a creditor and who, in the course of his trade, business or profession, for a fee, which may take a pecuniary form or any other agreed form of financial consideration, presents or offers credit agreements to consumers, assists consumers by undertaking preparatory work in respect of credit agreements, or concludes credit agreements with consumers on behalf of the creditor. Consequently, a collection agency, which acts on behalf of a lender for the conclusion of a rescheduling agreement for an unpaid credit, under which the consumer undertakes to repay the total amount of the credit and to pay interest and costs, must be categorised as a credit intermediary within the meaning of Article 3(f).

   In the second place, such a credit intermediary is, in principle, subject to the obligation to provide the consumer with pre-contractual information laid down in Articles 5 and 6 of that directive. However, in accordance with the first sentence of Article 7 of Directive 2008/48, suppliers of goods or services acting as credit intermediaries in an ancillary capacity are not subject to that obligation. In that regard, recital 24 of that directive states that those suppliers of goods and services may be deemed, for example, to be acting as credit intermediaries in an ancillary capacity if their activity as credit intermediaries is not the main purpose of their trade, business or profession. It is for the referring court to determine whether, having regard to all the circumstances of the case, in particular the main object of the activity of the credit intermediary in question, it may be considered to act as a credit intermediary in an ancillary capacity, within the meaning of the first sentence of Article 7 of that directive.

   (see paras 43, 44, 46-48, 53, operative part 2)