Case C-602/10

SC Volksbank România SA

v

Autoritatea Naţională pentru Protecţia Consumatorilor — Comisariatul Judeţean pentru Protecţia Consumatorilor Călăraşi (CJPC)

(Reference for a preliminary ruling from the Judecătoria Călăraşi)

‛Consumer protection — Credit agreements for consumers — Directive 2008/48/EC — Articles 22, 24 and 30 — National legislation designed to transpose that directive — Applicability to agreements not included in the material and temporal scope of the directive — Obligations not provided for by the directive — Limitation on the bank charges capable of being levied by the creditor — Articles 56 TFEU, 58 TFEU and 63 TFEU — Obligation to put in place, in national law, adequate and effective out-of-court dispute resolution procedures’

Summary of the Judgment

1. Consumer protection — Directive 2008/48 — Credit agreements for consumers — Scope — Credit agreements secured by immovable property — Not included — National implementing legislation including those credit agreements within its scope and imposing in their regard obligations on credit institutions — Lawfulness

   (European Parliament and Council Directive 2008/48, recital 10 and Arts 2(2)(a) and 22(1))

2. Questions referred for a preliminary ruling — Admissibility — Conditions — Questions bearing a relation to the actual facts of the action or its purpose — Reference providing the Court with sufficient explanation of the factual and legislative context

   (Art. 267 TFEU; Statute of the Court of Justice, Art. 23)

3. Consumer protection — Directive 2008/48 — Credit agreements for consumers — Scope — National implementing legislation including within its scope credit agreements secured by immovable property which are excluded from the directive’s scope — Applicability to agreements existing on the date of that legislation’s entry into force — Lawfulness

   (European Parliament and Council Directive 2008/48, Art. 30(1))

4. Freedom to provide services — Restrictions — National legislation prohibiting credit institutions from levying certain bank charges — Legislation not resulting in an additional burden for credit institutions established in other Member States — Lawfulness

   (Art. 56 TFEU)

5. Preliminary rulings — Jurisdiction of the Court — Limits — Interpretation sought owing to the applicability of the provisions of a directive that have been transposed into national law to situations not governed by EU law — Jurisdiction to provide such an interpretation

   (Art. 267 TFEU)

6. Consumer protection — Directive 2008/48 — Credit agreements for consumers — Out-of-court resolution of disputes — National legislation allowing consumers to have recourse to a consumer protection authority without having to use out-of-court dispute resolution procedures beforehand — Lawfulness

   (European Parliament and Council Directive 2008/48, Art. 24(1))

1.  As is clear from recital 10 in the preamble to Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102, the Member States may, in accordance with EU law, apply provisions of that directive to areas not covered by its scope. Thus they may, in respect of credit agreements not falling within the directive’s scope, maintain or introduce national measures corresponding to the provisions of the directive or to certain of them.

   It follows that Article 22(1) of Directive 2008/48 must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from including in its material scope credit agreements concerning the grant of credit secured by immovable property, even though such agreements are expressly excluded from the material scope of the directive by virtue of Article 2(2)(a) thereof.

   Nor does Article 22(1) of Directive 2008/48 preclude, as regards those agreements, a Member State from imposing on credit institutions obligations not provided for by the directive as regards the types of charges that they may levy in connection with consumer credit agreements falling within the scope of that measure.

   It is not evident that such a consumer protection rule, in a field not harmonised by Directive 2008/48, would be such as to affect the balance upon which that directive is based, in the field harmonised by it, between the objectives of consumer protection and the objective of ensuring the establishment of a well-functioning internal market in consumer credit.

   (see paras 40, 44, 62, 67, operative part 1 and 3)

2.  See the text of the decision.

   (see paras 48-51)

3.  Article 30(1) of Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102 must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from defining its temporal scope so that the measure also applies to credit agreements concerning the grant of credit secured by immovable property, which are excluded from the material scope of that directive, where they were existing on the date when that national measure entered into force.

   Whilst, for such agreements, the Member States may introduce in their national legislation designed to transpose Directive 2008/48 a rule corresponding specifically to the transitional measure laid down in Article 30(1) of that directive, they may in principle also, in compliance with the rules of the FEU Treaty and without prejudice to other measures of secondary law that may be relevant, lay down a different transitional measure the consequence of which is that that legislation also applies to agreements existing on the date of its entry into force.

   (see paras 53, 54, operative part 2)

4.  National legislation which prohibits credit institutions from levying certain bank charges in connection with consumer credit agreements does not constitute a restriction on the freedom to provide services. Although such a national provision may require certain clauses of agreements to be amended, it does not result, by itself, in an additional burden for credit institutions established in other Member States or, a fortiori, in the need for those undertakings to review their commercial policy and strategies in order to be able to gain access to the market of a Member State in conditions compatible with its legislation. It follows that it is not evident that such a national provision renders access to that market less attractive and, in the event of access thereto, genuinely reduces the ability of the undertakings concerned to compete effectively, from the outset, against undertakings traditionally established in that State.

   (see paras 78-80, 83, operative part 4)

5.  See the text of the decision.

   (see paras 86, 87)

6.  Article 24(1) of Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102 must be interpreted as not precluding a rule forming part of the national measure designed to transpose that directive that, as regards disputes concerning consumer credit, allows consumers to have direct recourse to a consumer protection authority, which may subsequently impose penalties on credit institutions for infringement of that national measure, without having to use beforehand the out-of-court resolution procedures provided for by national legislation for such disputes.

   Neither Article 24(1) of Directive 2008/48, which requires out-of-court dispute resolution procedures to be adequate and effective, nor anything else in the directive enlarges upon the detail or nature of those procedures. Therefore, it is for the Member States to lay down the detail of those procedures, including whether they are mandatory, whilst ensuring that the directive remains effective.

   Directive 2008/48 cannot therefore prevent a Member State, in the exercise of the broad discretion which it is allowed by that directive, from permitting the widest possible access of consumers to the bodies specially set up to defend their interests on account, in particular, of the risk that consumers, who are as a general rule in an inferior position to creditors so far as concerns both bargaining power and level of knowledge, will be unaware of their rights or encounter difficulties in exercising them. Nor can the view be taken that such a national provision has the effect of rendering procedures concerning out-of-court resolution of disputes relating to consumer credit agreements inadequate, ineffective or prejudicial to the effectiveness of Directive 2008/48.

   (see paras 94, 95, 98-100, operative part 5)

Case C-602/10

SC Volksbank România SA

v

Autoritatea Naţională pentru Protecţia Consumatorilor — Comisariatul Judeţean pentru Protecţia Consumatorilor Călăraşi (CJPC)

(Reference for a preliminary ruling from the Judecătoria Călăraşi)

‛Consumer protection — Credit agreements for consumers — Directive 2008/48/EC — Articles 22, 24 and 30 — National legislation designed to transpose that directive — Applicability to agreements not included in the material and temporal scope of the directive — Obligations not provided for by the directive — Limitation on the bank charges capable of being levied by the creditor — Articles 56 TFEU, 58 TFEU and 63 TFEU — Obligation to put in place, in national law, adequate and effective out-of-court dispute resolution procedures’

Summary of the Judgment

1. Consumer protection — Directive 2008/48 — Credit agreements for consumers — Scope — Credit agreements secured by immovable property — Not included — National implementing legislation including those credit agreements within its scope and imposing in their regard obligations on credit institutions — Lawfulness

   (European Parliament and Council Directive 2008/48, recital 10 and Arts 2(2)(a) and 22(1))

2. Questions referred for a preliminary ruling — Admissibility — Conditions — Questions bearing a relation to the actual facts of the action or its purpose — Reference providing the Court with sufficient explanation of the factual and legislative context

   (Art. 267 TFEU; Statute of the Court of Justice, Art. 23)

3. Consumer protection — Directive 2008/48 — Credit agreements for consumers — Scope — National implementing legislation including within its scope credit agreements secured by immovable property which are excluded from the directive’s scope — Applicability to agreements existing on the date of that legislation’s entry into force — Lawfulness

   (European Parliament and Council Directive 2008/48, Art. 30(1))

4. Freedom to provide services — Restrictions — National legislation prohibiting credit institutions from levying certain bank charges — Legislation not resulting in an additional burden for credit institutions established in other Member States — Lawfulness

   (Art. 56 TFEU)

5. Preliminary rulings — Jurisdiction of the Court — Limits — Interpretation sought owing to the applicability of the provisions of a directive that have been transposed into national law to situations not governed by EU law — Jurisdiction to provide such an interpretation

   (Art. 267 TFEU)

6. Consumer protection — Directive 2008/48 — Credit agreements for consumers — Out-of-court resolution of disputes — National legislation allowing consumers to have recourse to a consumer protection authority without having to use out-of-court dispute resolution procedures beforehand — Lawfulness

   (European Parliament and Council Directive 2008/48, Art. 24(1))

1.  As is clear from recital 10 in the preamble to Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102, the Member States may, in accordance with EU law, apply provisions of that directive to areas not covered by its scope. Thus they may, in respect of credit agreements not falling within the directive’s scope, maintain or introduce national measures corresponding to the provisions of the directive or to certain of them.

   It follows that Article 22(1) of Directive 2008/48 must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from including in its material scope credit agreements concerning the grant of credit secured by immovable property, even though such agreements are expressly excluded from the material scope of the directive by virtue of Article 2(2)(a) thereof.

   Nor does Article 22(1) of Directive 2008/48 preclude, as regards those agreements, a Member State from imposing on credit institutions obligations not provided for by the directive as regards the types of charges that they may levy in connection with consumer credit agreements falling within the scope of that measure.

   It is not evident that such a consumer protection rule, in a field not harmonised by Directive 2008/48, would be such as to affect the balance upon which that directive is based, in the field harmonised by it, between the objectives of consumer protection and the objective of ensuring the establishment of a well-functioning internal market in consumer credit.

   (see paras 40, 44, 62, 67, operative part 1 and 3)

2.  See the text of the decision.

   (see paras 48-51)

3.  Article 30(1) of Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102 must be interpreted as not precluding a national measure designed to transpose that directive into domestic law from defining its temporal scope so that the measure also applies to credit agreements concerning the grant of credit secured by immovable property, which are excluded from the material scope of that directive, where they were existing on the date when that national measure entered into force.

   Whilst, for such agreements, the Member States may introduce in their national legislation designed to transpose Directive 2008/48 a rule corresponding specifically to the transitional measure laid down in Article 30(1) of that directive, they may in principle also, in compliance with the rules of the FEU Treaty and without prejudice to other measures of secondary law that may be relevant, lay down a different transitional measure the consequence of which is that that legislation also applies to agreements existing on the date of its entry into force.

   (see paras 53, 54, operative part 2)

4.  National legislation which prohibits credit institutions from levying certain bank charges in connection with consumer credit agreements does not constitute a restriction on the freedom to provide services. Although such a national provision may require certain clauses of agreements to be amended, it does not result, by itself, in an additional burden for credit institutions established in other Member States or, a fortiori, in the need for those undertakings to review their commercial policy and strategies in order to be able to gain access to the market of a Member State in conditions compatible with its legislation. It follows that it is not evident that such a national provision renders access to that market less attractive and, in the event of access thereto, genuinely reduces the ability of the undertakings concerned to compete effectively, from the outset, against undertakings traditionally established in that State.

   (see paras 78-80, 83, operative part 4)

5.  See the text of the decision.

   (see paras 86, 87)

6.  Article 24(1) of Directive 2008/48 on credit agreements for consumers and repealing Directive 87/102 must be interpreted as not precluding a rule forming part of the national measure designed to transpose that directive that, as regards disputes concerning consumer credit, allows consumers to have direct recourse to a consumer protection authority, which may subsequently impose penalties on credit institutions for infringement of that national measure, without having to use beforehand the out-of-court resolution procedures provided for by national legislation for such disputes.

   Neither Article 24(1) of Directive 2008/48, which requires out-of-court dispute resolution procedures to be adequate and effective, nor anything else in the directive enlarges upon the detail or nature of those procedures. Therefore, it is for the Member States to lay down the detail of those procedures, including whether they are mandatory, whilst ensuring that the directive remains effective.

   Directive 2008/48 cannot therefore prevent a Member State, in the exercise of the broad discretion which it is allowed by that directive, from permitting the widest possible access of consumers to the bodies specially set up to defend their interests on account, in particular, of the risk that consumers, who are as a general rule in an inferior position to creditors so far as concerns both bargaining power and level of knowledge, will be unaware of their rights or encounter difficulties in exercising them. Nor can the view be taken that such a national provision has the effect of rendering procedures concerning out-of-court resolution of disputes relating to consumer credit agreements inadequate, ineffective or prejudicial to the effectiveness of Directive 2008/48.

   (see paras 94, 95, 98-100, operative part 5)