¹ OJ 1987 L 42/48; Cf. COM (95) 117 final; COM (96) 79 final; COM (97) 465 final.Google Scholar

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 …”.Google Scholar

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”.Google Scholar

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).Google Scholar

⁵ Cf. http://www.europa.eu.int/comm/consumers/cons_int/fina_serv/cons_directive/index_en.htm.Google Scholar

⁶ See press release IP/02/1289 Brussels, 11/09/02 (http://www.europa.eu.int/rapid/start/cgi/gue-sten.ksh?p_action.gettxt=gt&doc=IP/02/1289|0|RAPID&lg=EN&display=), COM (2002) 443 final 5.Google Scholar

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.Google Scholar

⁸ KSchG, öBGBl 1979/140 as amended (öBGBl I 2002/111).Google Scholar

⁹ BWG, öBGBl 1993/532 as amended (öBGBl I 2001/97).Google Scholar

¹⁰ VAG, öBGBl 1978/569 as amended (öBGBl 1999/194).Google Scholar

¹¹ ÖBGBl II 1999/260 as amended (öBGBl II 2001/490).Google Scholar

¹² Mülbert, ÖBA 1993, 105.Google Scholar

¹³ Cf. the German Association of credit institutions (Bankenfachverband), http://www.bankenfachverband.de/Artikel/startseite007920.cfm as well as the French Association of Specialised Credit Establishments, Consumer Credit Directive. Brussels threatens economic Growth, European Voice of 31^st October/6^th November 2002: “In their current wording the directive's provisions appear to have forgotten that consumers are adults.”Google Scholar

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.Google Scholar

¹⁵ Cf. the French Association of Specialised Credit Establishments (supra footnote 13; Jean-François Vilain, CEO of Franfinance, a specialised subsidiary of Société Général).Google Scholar

¹⁶ See below [7] and [8].Google Scholar

¹⁷ 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.Google Scholar

¹⁸ Art. 3 par 1 of the proposal.Google Scholar

¹⁹ Art. 2 lit f of the proposal.Google Scholar

²⁰ Art. 2 lit e of the proposal.Google Scholar

²¹ Art. 23 para. 1.Google Scholar

²² Art. 23 para. 2.Google Scholar

²³ Art. 23 para. 3.Google Scholar

²⁴ 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.).Google Scholar

²⁵ Concerning advertisement of the intermediary and fees granted to him.Google Scholar

²⁶ 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).Google Scholar

²⁷ 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,–).Google Scholar

²⁸ 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.Google Scholar

²⁹ Cf. the French Association of Specialised Credit Establishments (supra footnote 13; Arnaud de Marcellus, chairman of ASF's Surety Committee).Google Scholar

³⁰ Judgement of December 13^th 2001, Case C-481/99, Heininger, [2001] ECR I-9945.Google Scholar

³¹ COM (2002) 443 final 5.Google Scholar

³² Art. 6 para. 1.Google Scholar

³³ 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.Google Scholar

³⁴ … which stipulates a duty to inform the guarantor in time before he is made liable.Google Scholar

³⁵ 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.Google Scholar

³⁶ Information that has to be given in the case of overrunning of the total amount of credit.Google Scholar

³⁷ Cf. the French Association of Specialised Credit Establishments (supra footnote 13; Michel Lecomte, Chairman of ASF).Google Scholar

³⁸ Cf. the French Association of Specialised Credit Establishments (supra footnote 13).Google Scholar

³⁹ Cf. the French Association of Specialised Credit Establishments (supra footnote 13) with regard to the obligation to state three different kinds of rates, which in their opinion “can only confuse consumers”.Google Scholar

⁴⁰ 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.Google Scholar

⁴¹ Art. 19 par 2 of the proposal.Google Scholar

⁴² COM (2002) 443 final 22.Google Scholar

⁴³ COM (2002) 443 final 26 et seq.Google Scholar

⁴⁴ 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.Google Scholar

⁴⁵ 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.Google Scholar

⁴⁶ Art. 24 par 1 b) of the proposal.Google Scholar

⁴⁷ Formerly Art. 9 of Directive 87/102.Google Scholar

⁴⁸ Cf. supra footnote 30 (Heininger).Google Scholar

⁴⁹ “Credit providers have neither the means nor services to manage restitution of goods … [This provision] entails a dramatic increase of internal costs for specialised credit establishments, and therefore, at the end of the day, of expenses borne by the consumer…The Directive shows a severe lack of understanding of what actually goes on in the field …” (Cf. supra footnote 13).Google Scholar

⁵⁰ 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.”Google Scholar

⁵¹ Which becomes even more delicate because of the principle of maximum harmonisation; cf. infra [17ff].Google Scholar

⁵² Art. 30 par 2 and 4 of the proposal.Google Scholar

⁵³ Also called “full harmonisation”; cf. the Consumer Policy Strategy 2002-2006, Communication of 7 May 2002, COM (2002) 208 final (http://europa.eu.int/eurlex/pri/en/oj/dat/2002/c_137/c_13720020608en00020023.pdf). If and to which degree national legislation is allowed to deviate from the regulations of a directive depends on the type of harmonisation intended; cf. Taschner in Groben/Tiesing/Ehlermann (Ed), EU-/EG-Vertrag⁵, 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.Google Scholar

⁵⁴ Art. 15 of Directive 87/102.Google Scholar

⁵⁵ 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.Google Scholar

⁵⁶ Quoted supra note 53.Google Scholar

⁵⁷ Cf. Craig & de Búrca, EU Law, 3^rd ed. (2003) 1195.Google Scholar

⁵⁸ 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.Google Scholar

⁵⁹ 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).Google Scholar

⁶⁰ Art. 30 par 1 a) and b) of the proposal.Google Scholar

⁶¹ This is indicated by the wording: “The central database … may include the registration of credit agreements and surety agreements.”Google Scholar

⁶² 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.Google Scholar

⁶³ Art. 33 of the proposal.Google Scholar

⁶⁴ 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.Google Scholar

⁶⁵ 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.Google Scholar

⁶⁶ 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.Google Scholar

⁶⁷ 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).Google Scholar

⁶⁸ Art. 30 par 3 of the proposal explicitly admonishes the member states to make sure that the provisions of the proposal cannot be circumvented.Google Scholar

⁶⁹ COM (2002) 443 final 28.Google Scholar

⁷⁰ Cf. supra section II.Google Scholar