The Proposal for a new Directive concerning Credit for Consumers

German Law Journal

Volumn 4, Issue 8, 2003, Pages 801-813

  Nemeth, Kristin ^a   Ortner, Helmut ^a  

^a NONE

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EID: 85045379345     PISSN: None     EISSN: 20718322     Source Type: Journal    
DOI: 10.1017/S2071832200016436     Document Type: Article

References (63)

1. OJ 1987 L 42/48; Cf. COM (95) 117 final; COM (96) 79 final; COM (97) 465 final.
2. COM (2002) 443 final 3. The European legislator was obviously aware of this fact; cf. Art. 15 dir. 87/102/EEC: "This Directive shall not preclude Member States from retaining⋯ more stringent provisions to protect consumers⋯".
3. Cf. COM (2002) 443 final 25: "⋯ for some years now the range of credit available has been growing⋯"; COM (2002) 443 final 2: "⋯ the reports and the consultations show that there are enormous differences between the laws of the various member states in relation to⋯ consumer credit⋯". Interesting enough, the same reason was mentioned in the statement of reasons of directive 87/102/EEC: "whereas there has been much change in recent years in the types of credit available to and used by consumers; whereas new forms of consumer credit have emerged and continue to develop".
4. Cf. Art. 20 of the proposal (credit agreements providing constitution of capital) and Art. 21 (credit agreement in the form of an advance on a current account or a debit account); cf. COM (2002) 443 final 3; Amparo San José Riestra, The new consumer credit directive: a feasible attempt to harmonisation? (http://www.ceps.be/Commentary/Oct02/SanJose.php).
5. Cf. http://www.europa.eu.int/comm/consumers/cons-int/fina-serv/cons-directive/index-en.htm.
6. See press release IP/02/1289 Brussels, 11/09/02 (http://www.europa.eu.int/rapid/start/cgi/guesten.ksh?p-action.gettxt=gt&doc=IP/02/1289101RAPID&lg=EN&display=), COM (2002) 443 final 5.
7. VerbrKrG, dBGBl I 1990, 2840 as amended. In the meantime most special statutes were implemented into the German Civil Code (BGB). The relevant provisions concerning consumer credit can be found in sections 491 et seq. BGB.
8. KSchG, öBGBl 1979/140 as amended (öBGBl I 2002/111).
9. BWG, öBGBl 1993/532 as amended (öBGBl I 2001/97).
10. VAG, öBGBl 1978/569 as amended (öBGBl 1999/194).
11. ÖBGBl II 1999/260 as amended (öBGBl II 2001/490).
12. Mülbert, ÖBA 1993, 105.
13. th November 2002: "In their current wording the directive's provisions appear to have forgotten that consumers are adults."
14. Up to 75% [other figures mention 50-65%] of the consumers in Europe currently use consumer credit and 30% of consumers enjoy an overdraft facility on their current account. The total amount of these credit arrangements exceeds € 500.000 million, corresponding to more than 7% of GDP. The annual growth rate is overall around 7%; cf. COM (2002) 443 final 3.
15. See below [7] and [8].
16. Art. 20-22 cover specific credit agreements and modalities which partially also justify certain exceptions of other directive provisions (cf. Art. 16). They shall not be looked at in detail. See, Art. 2 lit a, b and c of the proposal.
17. Art. 3 par 1 of the proposal.
18. Art. 2 lit f of the proposal.
19. Art. 2 lit e of the proposal.
20. Art. 23 para. 1.
21. Art. 23 para. 2.
22. Art. 23 para. 3.
23. For a definition of the term see Art. 2 lit d. See, It should not be forgotten that also Art. 3, 12, 14 of the Directive 87/102 are applicable to credit intermediaries; cf. Knobl, ÖBA 1995, 667 (section 3.1.).
24. Concerning advertisement of the intermediary and fees granted to him.
25. Such as e.g. Art. 6 par 1 (exchange of information in advance and duty to provide advice), Art. 10 (information that must be included in credit and surety agreements), Art. 28 (registration of creditors and credit intermediaries), Art. 33 (burden of proof).
26. Art. 2 par 1 lit f of the Directive 87/102 states that the directive shall not apply to credit agreements involving amounts less than ECU 200, - or more than ECU 20.000,-. This will have to lead to an amendment of the respective Austrian provision in the Consumer Protection Code as well. Also the present directive has already led to changes within the Austrian Consumer Protection Code concerning the respective thresholds stated in § 16 par 1 and § 26b applicable to instalment plans and the sale of periodicals - They were then increased from ATS 150.000, - (now approx. € 11.000,-) to ATS 310.000,-(now € 25.000,-).
27. Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, OJ 1985 L 372/31.
28. th 2001, Case C-481/99, Heininger, [2001] ECR I-9945.
29. COM (2002) 443 final 5.
30. Art. 6 para. 1.
31. Titled credit agreement in the form of an advance on a current account or a debit account. Art. 21 of the proposal proposes a standard method for providing information during the term of the credit agreement.
32. ⋯ which stipulates a duty to inform the guarantor in time before he is made liable.
33. This clause states the creditor's duty to hand over a detailed statement of account in case of the consumer's non-performance with his obligations or early repayment, allowing him to verify the charges and interest claimed.
34. Information that has to be given in the case of overrunning of the total amount of credit.
35. Art. 11 par 2 of Directive 87/102. It should be mentioned that the Austrian implementation of Art. 11 (§ 18 KSchG) only stipulates the consumer's right to refuse repayment as long as the supplier has not performed his duties.
36. Art. 19 par 2 of the proposal.
37. COM (2002) 443 final 22.
38. COM (2002) 443 final 26 et seq.
39. Recital 28 thereby only refers to the general meaning of the principle of proportionality with respect to Art. 5 EC, i.e. with respect to measures taken by the Community and not specifically to contractual obligations between creditors and consumers.
40. According to Art. 24 par 2 this is not necessary if the consumer is accused of fraud or acting against his obligations arising from the credit agreement; however, it is the creditor who has to provide the evidence for such circumstances.
41. Art. 24 par 1 b) of the proposal.
42. Formerly Art. 9 of Directive 87/102.
43. The statement of reasons of directive 87/02 makes clear that both elements of Art. 8 were of importance: "Whereas the consumer should be allowed to discharge his obligations before the due date; whereas the consumer should then be entitled to an equitable reduction in the total cost of the credit."
44. Which becomes even more delicate because of the principle of maximum harmonisation.
45. Art. 30 par 2 and 4 of the proposal.
46. 5, 2/II (1999) Art. 100 EG par. 44; Herrenfeld in Schwarze, Art. 94 EG par. 42 et seq.; C-128/94 (Hönig - Stadt Sockach) [1995] ECR, I-3389 par. 9; C-1/96 (ex parte Compassion in World Farming - Minister of Agriculture, Fisheries and Food([1998] ECR I-1251 par. 49 et seq.
47. Art. 15 of Directive 87/102.
48. National provisions concerning maximum or exorbitant annual percentage rate of charge or any other type of setting or evaluation of maximum or exorbitant rates continue to apply, as these specific aspects are not dealt with in the proposal.
49. rd ed. (2003) 1195.
50. Similar reasons seem to constitute the background for the European Parliament's fears that the concept of maximal harmonisation could lead to a decline in consumer protection (this is e.g. mentioned by María Sornosa Martínez in an outline for the European Parliament of November 2002, PE 319.393). Another potential problem in regard with the principle is mentioned by the European Mortgage Federation in an official letter regarding the Position Paper on the Green Paper on European Union Consumer Protection (http://www.hypo.org): Despite welcoming the concept ("The efficiency⋯ clearly depend[s] on the condition that it is based on the full (maximum) harmonisation principle, thus eliminating the fragmentation which results from the minimum clause"), it calls into question the possibility to achieve the aim strived for by stating that it still remains unclear if the existing fragmentation resulting from a wide range of often very specific and detailed national legislation really can be suppressed.
51. Rohe, Privatautonomie im Verbraucherkreditrecht wohin?, BKR 2003, 267: Danco, Die Novellierung der Verbraucherkreditrichtlinie, WM 2003, 863; Kaiser, Vorschlag der EU-Kommission für eine Überarbeitung der Verbraucherkreditrichtlinie - Darstellung der wesentlichen Änderungen (http://www.vuronline.de/beitrag/33.html).
52. Rohe, Privatautonomie im Verbraucherkreditrecht wohin?, BKR 2003, 267: Danco, Die Novellierung der Verbraucherkreditrichtlinie, WM 2003, 863; Kaiser, Vorschlag der EU-Kommission für eine Überarbeitung der Verbraucherkreditrichtlinie - Darstellung der wesentlichen Änderungen (http://www.vuronline.de/beitrag/33.html).
53. Rohe, Privatautonomie im Verbraucherkreditrecht wohin?, BKR 2003, 267: Danco, Die Novellierung der Verbraucherkreditrichtlinie, WM 2003, 863; Kaiser, Vorschlag der EU-Kommission für eine Überarbeitung der Verbraucherkreditrichtlinie - Darstellung der wesentlichen Änderungen (http://www.vuronline.de/beitrag/33.html).
54. Art. 30 par 1 a) and b) of the proposal.
55. This is indicated by the wording: "The central database⋯ may include the registration of credit agreements and surety agreements."
56. The creditor would thus have at his disposal an instrument that is more reliable than a negative database. This would offer him the chance to check, whether a consumer, or possibly a guarantor, has concluded other credit or surety agreements that have not yet been subject to litigation but constitute an obstacle to further credit.
57. Art. 33 of the proposal.
58. Similar provisions can be found in other consumer protection directives (really more than the one mentioned), such as e.g. Art. 15 of Directive 2002/65/EC on the distance marketing of consumer financial services modifying Council Directives 90/916/EEC, 97/7EC and 98/28/EC.
59. E.g. Art. 6 par 2 of Directive 93/13/EEC on unfair terms in consumer contracts, OJ 1993 L 95/29; Art. 12 par 2 of Directive 97/7/EC on distance marketing, OJ 1997 L 144/19; Art. 7 par 2 of Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees, OJ 1999 L 171/12; Art. 12 par 2 of Directive 2000/65/EC on the distance marketing of financial services, OJ 2002 L 271/16.
60. However, par 5 makes clear that for this rule to apply, it is important that the agreement has a close link with the jurisdiction of one or more member states.
61. It is explicitly stated that circumvention of the application of the directive shall be prevented (Art. 30 par 3), both substantially as well as by choosing the applicable law (Art. 30 par 5).
62. Art. 30 par 3 of the proposal explicitly admonishes the member states to make sure that the provisions of the proposal cannot be circumvented.
63. COM (2002) 443 final 28.