Ultimo Portfolio Investment (Luxembourg) (Credit agreements for consumers - Risk of over-indebtedness - Judgment) [2021] EUECJ C-303/20 (10 June 2021)

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(Reference for a preliminary ruling – Credit agreements for consumers – Directive 2008/48/EC – Risk of over-indebtedness – Article 8 – Creditor’s obligation to assess the consumer’s creditworthiness – Article 23 – Effective, proportionate and dissuasive nature of the penalty in the event of infringement of that obligation)

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Rejonowy w Opatowie I Wydział Cywilny (District Court, Opatów, First Civil Division, Poland), made by decision of 27 September 2019, received at the Court on 8 July 2020, in the proceedings

composed of L. Bay Larsen, President of the Chamber, C. Toader (Rapporteur) and M. Safjan, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Articles 8 and 23 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).

2 The request has been made in proceedings between Ultimo Portfolio Investment (Luxembourg) SA (‘Ultimo Portfolio Investment’), the assignee of Aasa Polska SA, and KM, a natural person, concerning the payment of a debt arising from a consumer credit agreement.

‘(26) … In the expanding credit market, in particular, it is important that creditors should not engage in irresponsible lending or give out credit without prior assessment of creditworthiness, and the Member States should carry out the necessary supervision to avoid such behaviour and should determine the necessary means to sanction creditors in the event of their doing so. … creditors should bear the responsibility of checking individually the creditworthiness of the consumer. To that end, they should be allowed to use information provided by the consumer not only during the preparation of the credit agreement in question, but also during a long-standing commercial relationship. The Member States’ authorities could also give appropriate instructions and guidelines to creditors. Consumers should also act with prudence and respect their contractual obligations.

(47) Member States should lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and ensure that they are implemented. While the choice of penalties remains within the discretion of the Member States, the penalties provided for should be effective, proportionate and dissuasive.’

4 Article 8 of that directive, entitled ‘Obligation to assess the creditworthiness of the consumer’, provides in paragraph 1 thereof:

‘Member States shall ensure that, before the conclusion of the credit agreement, the creditor assesses the consumer’s creditworthiness on the basis of sufficient information, where appropriate obtained from the consumer and, where necessary, on the basis of a consultation of the relevant database. Member States whose legislation requires creditors to assess the creditworthiness of consumers on the basis of a consultation of the relevant database may retain this requirement.’

‘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.’

6 The ustawa o kredycie konsumenckim (Law relating to consumer credit) of 12 May 2011 (Dz. U. 2011, No 126, item 715) transposed Directive 2008/48 into Polish law. Article 9 of that law in the version applicable to the case in the main proceedings (‘the Law on consumer credit’), provides:

‘1. Before concluding a consumer credit agreement, the lender shall assess the consumer’s creditworthiness.

2. The assessment of creditworthiness shall be carried out on the basis of information obtained from the consumer or on the basis of information obtained from the relevant databases or the lender’s data sets.

3. The consumer shall, at the lender’s request, provide the lender with the documents and information necessary to carry out the assessment of his or her creditworthiness.

4. If the lender is a bank or another institution statutorily authorised to grant loans, the creditworthiness assessment shall be carried out in accordance with Article 70 of the Law on Banking of 29 August 1997 and other legislation applicable to those entities, taking paragraphs 1 to 3 into account.’

7 Article 24 of the ustawa – Kodeks wykroczeń (Law establishing the Code of minor offences) of 20 May 1971 (‘the Code of minor offences’) states:

‘1. Fines shall amount to between 20 and 5 000 [Polish] zlotys [(PLN)] unless the law provides otherwise.

2. If detention has been imposed for an offence committed for the purpose of financial gain, a fine shall also be imposed in addition to detention unless imposing a fine would not serve a useful purpose.

3. Where a fine is imposed, account shall be taken of the perpetrator’s income, personal and family situation, assets and earning potential.’

8 Under Article 45(1) of that code, an offence is to cease to be punishable if one year has elapsed since it was committed and, if proceedings have been instituted within that period, the offence is to cease to be punishable after two years have elapsed from the end of that period.

‘1a. The same penalty [a fine] shall be imposed on anyone who fails to comply with the obligation to assess creditworthiness when concluding a consumer credit agreement with a consumer.

4. If the trader is not a natural person, the liability provided for in paragraphs 1 to 3 shall be borne by the person in charge of the undertaking or the person authorised to conclude agreements with consumers.’

10 Under Article 5 of the ustawa – Kodeks cywilny (Law on the Civil Code) of 23 April 1964, in the version applicable to the case in the main proceedings, a civil court may, on application by a party or of that court’s own motion, dismiss the applicant’s claims on the basis of the provision penalising abuse of rights.

11 In accordance with Article 320 of the ustawa – Kodeks postępowania cywilnego (Law on the Code of Civil Procedure) of 17 November 1964, in the version applicable to the case in the main proceedings:

‘In particularly justified cases, the court may direct that the enforcement of the service ordered be divided into several stages and, in the case of the supply of immovable property or the surrender of premises, set a date which is appropriate for the enforcement of that service.’

The dispute in the main proceedings and the question referred for a preliminary ruling

12 As is apparent from the request for a preliminary ruling, on 23 May 2018 Aasa Polska, established in Warsaw (Poland), and KM concluded a consumer credit agreement. The amount of that credit was PLN 5 000 (approximately EUR 1 080) and the total amount to be repaid was PLN 8 626.58 (approximately EUR 1 862). That sum consisted in the principal, interest for the entire duration of the agreement amounting to PLN 536.58 (approximately EUR 115), front-end fees totalling PLN 2 490 (approximately EUR 537) and administrative fees in the amount of PLN 600 (approximately EUR 130). The credit was to be repaid from 22 June 2018 until 22 May 2020 in 24 instalments amounting to PLN 408 each (approximately EUR 88).

13 The debt arising from that agreement was assigned by Aasa Polska to Ultimo Portfolio Investment, whose seat is in Luxembourg (Luxembourg).

14 On the date on which the consumer credit agreement was concluded, KM owed debts arising from 23 credit and loan agreements, amounting to PLN 261 850 (approximately EUR 56 500), and the total amount of monthly payments arising from those debts was PLN 8 198 (approximately EUR 1 770); her husband was also liable for the debts arising from 24 credit and loan agreements. The debts arising from all those agreements totalled PLN 457 830 (approximately EUR 98 840) and the corresponding monthly payments totalled PLN 9 974.35 (approximately EUR 2 153). As at the same date, KM was employed on the basis of an employment contract with a net salary of PLN 2 300 (approximately EUR 500). Her husband, who for health reasons did not work, received no income.

15 The Sąd Rejonowy w Opatowie I Wydział Cywilny (District Court, Opatów, First Civil Division, Poland) – before which an action was brought on 4 April 2019 by Ultimo Portfolio Investment, the assignee of a debt of PLN 7 139.76 (approximately EUR 1 540) plus statutory interest – states that the agreement at issue in the main proceedings was concluded through a credit intermediary. It further states that, before the conclusion of that agreement, Aasa Polska did not check KM’s financial situation or the amount of her debts since, during the interview before the agreement was concluded, no questions were asked about her financial situation or the amount of the income and debts of the household concerned.

16 In its request for a preliminary ruling, the referring court states that although it ordered Ultimo Portfolio Investment, on 14 June 2019, to provide it with additional information relating to the action taken by the lender in order to assess KM’s creditworthiness, no information was provided to it on that subject.

17 The referring court explains that, according to its reading of Article 8(1) of Directive 2008/48, Member States must ensure that, before the conclusion of the credit agreement, the creditor assesses the consumer’s creditworthiness on the basis of sufficient information, where appropriate obtained from the consumer and, where necessary, on the basis of a consultation of the relevant database. Furthermore, under Article 23 of that directive, Member States must adopt rules on effective, proportionate and dissuasive penalties applicable to infringements of that obligation, by taking all necessary measures to ensure that they are implemented. According to that court, the Polish law in force does not guarantee compliance with those requirements imposed by that directive.

18 Thus, the referring court notes that Article 138c(1a) and (4) of the Code of minor offences penalises non-compliance with the obligation to assess the consumer’s creditworthiness, only by imposing the fine provided for in Article 24 of that code. In addition, under Article 45 of the Code of minor offences, that fine is promptly time-barred. The referring court also notes that the national legislation provides for the liability not of lenders as legal persons which have concluded loan agreements, but only of natural persons such as a director or the person authorised by the lender to conclude agreements with consumers.

19 Accordingly, the referring court asks whether the penalty provided for by the Code of minor offences meets the requirements laid down by Directive 2008/48, and is uncertain whether that penalty is effective, proportionate and dissuasive where the creditor fails to fulfil its obligation to check the consumer’s creditworthiness.

20 In those circumstances the Sąd Rejonowy w Opatowie I Wydział Cywilny (District Court, Opatów, First Civil Division) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does the penalty of liability for a minor offence that is imposed in Article 138c(1[a]) of the [Code of minor offences] for a failure to comply with the obligation to assess a consumer’s creditworthiness laid down in Article 8(1) of Directive [2008/48] constitute proper and sufficient implementation of the requirement, imposed on the Member State in Article 23 of that directive, to lay down in national law effective, proportionate and dissuasive penalties for a breach by the creditor of the obligation to assess the creditworthiness of a consumer?’

21 Ultimo Portfolio Investment and the Polish Government submit, in essence, primarily, that the request for a preliminary ruling is inadmissible since the referring court, which is a civil court seised of a dispute in a civil matter, does not have jurisdiction to impose if necessary a fine on a professional lender under the Code of minor offences.

22 It is clear from the Court’s case-law that, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of a provision of EU law, the Court is in principle bound to give a ruling.

23 It follows that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, judgment of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 38 and the case-law cited).

24 In the present case, it is apparent from the request for a preliminary ruling that the referring court is uncertain as to the meaning and scope of a provision of EU law, in this case Article 23 of Directive 2008/48, which it asks the Court to interpret. The referring court has sufficiently and precisely set out the factual circumstances giving rise to the dispute in the main proceedings and the legal context of the case, from which it is apparent that the question referred is not hypothetical.

25 Furthermore, although Ultimo Portfolio Investment and the Polish Government submit, inter alia, that under the Polish procedural rules a civil court hearing a civil case may not apply the penalties provided for in the Code of minor offences and that the penalty laid down in Article 138c(1a) of that code can be imposed only by a criminal court, it must be recalled that, in particular, the Court is empowered only to give rulings on the interpretation or the validity of an EU provision on the basis of the facts which the national court or tribunal puts before it. By contrast, it falls exclusively to the referring court to interpret national legislation (see, to that effect, judgment of 11 March 2021, Firma Z, C‑802/19, EU:C:2021:195, paragraph 37).

27 By its question, the referring court asks, in essence, whether Article 23 of Directive 2008/48 must be interpreted as meaning that the examination of the effectiveness, proportionality and dissuasiveness of the penalties provided for in that article, in the event, in particular, of the failure to comply with the obligation to examine the consumer’s creditworthiness, laid down in Article 8 of that directive, must be carried out by taking into account only the provision of national law specifically adopted when transposing that directive.

28 It follows from Article 8(1) of Directive 2008/48, that, prior to the conclusion of a credit agreement, the creditor must assess the consumer’s creditworthiness and that obligation may, where appropriate, include a consultation of the relevant databases. The purpose of that obligation is also to make a creditor accountable and to prevent that creditor from granting credit to consumers who are not creditworthy (see, to that effect, judgments of 18 December 2014, CA Consumer Finance, C‑449/13, EU:C:2014:2464, paragraph 43; of 6 June 2019, Schyns, C‑58/18, EU:C:2019:467, paragraph 40; and of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 20).

29 Since such an obligation is intended to protect consumers against the risks of over-indebtedness and bankruptcy, that obligation is of fundamental significance for those consumers (see, to that effect, judgments of 6 June 2019, Schyns, C‑58/18, EU:C:2019:467, paragraph 41, and of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 21 and the case-law cited).

30 Article 23 of Directive 2008/48 provides, first, that the system of penalties applicable in the event of infringement of the national provisions adopted pursuant to Article 8 of that directive must be established in such a way as to ensure that the penalties are effective, proportionate and dissuasive and, secondly, that the Member States are to take all measures necessary to ensure that they are implemented. Within those limits, the choice of penalties remains within the discretion of the Member States (see, to that effect, judgments of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 59 and the case-law cited, and of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 24 and the case-law cited).

31 Although the referring court’s questions relate, in the present case, solely to the penalty resulting from the combination of Articles 24 and 138c of the Code of minor offences, it is apparent from the written observations submitted to the Court, subject to confirmation by the referring court, that Polish law provides for a number of other penalties, including civil penalties, which the national courts may impose in the event of failure to comply with the obligation to check a consumer’s creditworthiness.

32 In the first place, although a fine may, admittedly, constitute a dissuasive penalty, its low amount may nonetheless render that penalty inadequate. Similarly, the fact that only natural persons are subject to such a penalty may be indicative of the shortcomings of the legislation concerned (see, by analogy, judgment of 4 March 2020, Bank BGŻ BNP Paribas, C‑183/18, EU:C:2020:153, paragraph 48 and the case-law cited). Furthermore, in order for a penalty to be effective and dissuasive, those responsible must be deprived of the economic benefits derived from their infringement (see, by analogy, judgment of 11 February 2021, K.M. (Sanctions imposed on the master of vessel), C‑77/20, EU:C:2021:112, paragraph 48). Lastly, and above all, such a penalty is not capable of ensuring, in a sufficiently effective manner, the protection of consumers against the risks of over-indebtedness and insolvency, sought by Directive 2008/48, if it has no effect on the situation of a consumer to whom credit was granted in breach of Article 8 of that directive (see, to that effect, judgment of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 38).

33 However, in the second place, it must be recalled that, under the third paragraph of Article 288 TFEU, a directive, while binding as to the result to be achieved upon each Member State to which it is addressed, leaves to the national authorities the choice of form and methods (judgment of 21 April 2016, Radlinger and Radlingerová, C‑377/14, EU:C:2016:283, paragraph 76 and the case-law cited).

34 Thus, the transposition of a directive does not necessarily require legislative action in each Member State. In particular, according to settled case-law of the Court, the existence of general principles or general rules may render superfluous transposition by specific additional legislative or regulatory measures, provided, however, that those principles or rules actually ensure the full application of that directive and that, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those principles or rules is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts (see to that effect, judgment of 3 December 2009, Commission v Belgium, C‑475/08, EU:C:2009:751, paragraph 41 and the case-law cited).

35 It follows that, in order to determine whether national legislation adequately implements the obligations resulting from a given directive, it is important to take into account not only the legislation specifically adopted for the purposes of transposing that directive, but also all the available and applicable legal rules.

36 Thus, it follows from the Court’s case-law that although Article 23 of Directive 2008/48 requires that penalties be dissuasive, the courts must also enjoy a discretion enabling them, depending on the circumstances of the case, to choose the measure proportionate to the seriousness of the failure to comply with the obligation found (see, to that effect, judgments of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraph 63, and of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 26). National courts must, therefore, consider the whole body of rules of national law and interpret them, so far as possible, in the light of the wording and purpose of that directive in order to achieve an outcome consistent with the objectives pursued by the directive (see, to that effect, judgments of 27 March 2014, LCL Le Crédit Lyonnais, C‑565/12, EU:C:2014:190, paragraph 54, and of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 41).

37 Where the national legislature has, as in the present case, with a view to penalising an infringement of the obligation to check a consumer’s creditworthiness, provided, in addition to a penalty included in the Code of minor offences, for civil penalties from which the consumer concerned may benefit, those penalties must, in the light of the particular importance afforded by Directive 2008/48 to consumer protection, be implemented in compliance with the principle of effectiveness (judgment of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 39).

38 In the present case, it is apparent from the documents before the Court, subject to the checks which it is for the national court to carry out, that the provisions laid down by national legislation include the forfeiture of entitlement to interest, the division of the performance of the contract into non-interest-bearing instalments and the invalidity of certain terms on the basis of the national legislation transposing Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), or Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

39 As regards, first of all, the forfeiture of entitlement to interest, the Court has already held that that type of penalty, provided for by national legislation, must be regarded as proportionate, within the meaning of Article 23 of Directive 2008/48, as regards cases of the creditor’s breach of a vitally important obligation in the context of that directive (see, to that effect, judgment of 9 November 2016, Home Credit Slovakia, C‑42/15, EU:C:2016:842, paragraphs 69 to 71 and the case-law cited).

40 As has been pointed out in paragraphs 29 and 30 above, the obligation to check the creditworthiness of the consumer, laid down in Article 8(1) of Directive 2008/48, is of such vital importance.

41 Next, as regards the division of performance of the contract, this may allow the consumer’s situation to be taken into account and avoid exposing the consumer to particularly unfavourable consequences (see, to that effect, judgment of 26 March 2019, Abanca Corporación Bancaria and Bankia, C‑70/17 and C‑179/17, EU:C:2019:250, paragraphs 56, 58 and 59 and the case-law cited).

42 Lastly, in order to meet the requirements laid down in Article 23 of Directive 2008/48, the referring court may apply that directive in conjunction with Directive 93/13, in order, where appropriate, to reach the conclusion that terms relating to excessive charges are not binding on the consumer (see, to that effect, judgment of 3 September 2020, Profi Credit Polska, C‑84/19, C‑222/19 and C‑252/19, EU:C:2020:631, paragraph 97).

43 In so doing, the referring court must ascertain whether the imposition of the penalty provided for by Directive 93/13 is not less advantageous for the consumer than a simple penalty of forfeiture of entitlement to interest, provided for by the national legislation implementing Article 23 of Directive 2008/48 (see, to that effect, order of 16 November 2010, Pohotovosť, C‑76/10, EU:C:2010:685, paragraph 77).

44 In the same vein, the Court has already ruled that a finding that a commercial practice is unfair, within the meaning of Directive 2005/29, is one element among others on which the competent court may base its assessment of the unfairness, within the meaning of Directive 93/13, of the contractual terms relating to that practice in the contract binding the seller or supplier and the consumer (see, to that effect, judgments of 15 March 2012, Pereničová and Perenič, C‑453/10, EU:C:2012:144, paragraph 47, and of today’s date, BNP Paribas Personal Finance, C‑776/19 to C‑782/19, paragraph 76).

45 In the light of all the foregoing considerations, the answer to the question referred is that Article 23 of Directive 2008/48 must be interpreted as meaning that the examination of the effectiveness, proportionality and dissuasiveness of the penalties provided for in that provision, in the event, inter alia, of the failure to comply with the obligation to examine the creditworthiness of the consumer, laid down in Article 8 of that directive, must be carried out taking into account, in accordance with the third paragraph of Article 288 TFEU, not only the provision adopted specifically in national law to transpose that directive, but also all the provisions of that law, interpreting them, so far as possible, in the light of the wording and objectives of that directive, so that those penalties meet the requirements laid down in Article 23 thereof.

46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 23 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 the examination of the effectiveness, proportionality and dissuasiveness of the penalties provided for in that provision, in the event, inter alia, of the failure to comply with the obligation to examine the creditworthiness of the consumer, laid down in Article 8 of that directive, must be carried out taking into account, in accordance with the third paragraph of Article 288 TFEU, not only the provision adopted specifically in national law to transpose that directive, but also all the provisions of that law, interpreting them, so far as possible, in the light of the wording and objectives of that directive, so that those penalties meet the requirements laid down in Article 23 thereof.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Ultimo Portfolio Investment (Luxembourg) (Credit agreements for consumers - Risk of over-indebtedness - Judgment) [2021] EUECJ C-303/20 (10 June 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/C30320.html Cite as: [2021] EUECJ C-303/20, EU:C:2021:479, ECLI:EU:C:2021:479

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