C-192/94

'Is Article 11 of Council Directive 87/102/EEC of 22 December 1986 for the 2. The origin of the dispute is a credit agree- approximation of the laws, regulations and ment which the defendant in the main administrative provisions of the Member States concerning consumer credit, which has not been implemented in national law by the Spanish State, directly applicable in a case * Original language: German. where a consumer seeks to rely, against a 1 — Council Directive 87/102/EEC of 22 December 1986 (OJ 1987 L 42, p. 48). claim by the grantor of credit, on the defects 2 — Case C-91/92 Faccini Dori [1994] ECR I-3325. in the service supplied by the supplier with

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whom the said grantor of credit has con­ Β — Opinion cluded an exclusive agreement for granting credit to his customers?'

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7. All those participating in the proceedings (a) in order to buy goods or obtain services — the plaintiff in the main proceedings (the the consumer enters into a credit agree- credit institution which brought the pro- ment with a person other than the sup- ceedings), the Spanish and the French Gov- plier of them; ernments and the Commission — claim that the case-law to date should be adhered to.

I. Whether Article 11 of the directive is suf- ficiently precise and unconditional and

8. The essential requirement which a direc- tive must satisfy in order to have direct effect (b) the grantor of the credit and the supplier is that it must be sufficiently precise and of the goods or services have a pre- unconditional as to enable rights to be existing agreement whereunder credit is derived from it directly for individuals. Arti- made available exclusively by that grantor cle 11 of Directive 87/102 — at issue in these of credit to customers of that supplier for proceedings — reads as follows: the acquisition of goods or services from that supplier; and

'1. Member States shall ensure that the exist- ence of a credit agreement shall not in any (c) the consumer referred to in subparagraph way affect the rights of the consumer against (a) obtains his credit pursuant to that pre- the supplier of goods or services purchased existing agreement; and by means of such an agreement in cases where the goods or services are not supplied or are otherwise not in conformity with the contract for their supply.

11. It should be observed in this connection that Article 11(2) must be seen in the context of the provisions of the directive. Article 3. Paragraph 2 shall not apply where the 11(1) lays down a clear aim for the Member individual transaction in question is for an States in that it prohibits the consumer's amount less than the equivalent of being disadvantaged in any way as a result of 200 ECU.' the severance of a credit agreement from the transaction financed thereby. It follows from this, however, as regards Article 11(2) that the Member States have no discretion as to whether the consumer is to be enabled to pursue remedies against the grantor of credit. Member States are intended to have a free 9. Consequently, as a result of the particu- rein only with regard to how this takes place larly relevant provision in this case, Article or, in other words, with regard to the actual 11(2), whether it is possible for the consumer configuration from the technical legal point to pursue remedies against the grantor of of view of the legal position (consumer credit depends upon specific requirements claim, defence, etc). which do not leave the Member States any leeway in implementation.

10. What might, however, suggest that the provision is not sufficiently precise and 12. It appears from the context of the provi- unconditional is — as the plaintiff in the sions of the directive that the basic grant of a main proceedings argues — that the second legal position for the consumer is to be gov- sentence of Article 11(2) provides for a erned by Community law. In particular, the

15. It should be considered in limine 13. The discretion afforded to the Member whether a national court is entitled to apply States by the second sentence of Article 11(2) a provision of a directive which is directly with regard to what extent and under what applicable even where the beneficiary of the conditions the remedies are to be exercisable provision does not 'rely' on the provision. In is therefore limited. As appears from Article the leading cases of the Court concerning the 11(1) of the directive, the consumer may not direct applicability of directives, direct effect in any event be in a worse position than he constitutes a claim which the beneficiary is would have been had the credit agreement entitled to assert against the State by 'rely- concluded in order to finance the underlying ing' on the relevant provision. 5 Neverthe- contract formed part of that contract. The less, in Verholen 6 the Court declared as fol- remedies which the consumer may assert lows: against the grantor of the credit must, in qualitative terms, at least not be worse that those available to him directly against the other party to the contract in respect of the transaction being financed. It follows that Article 11(2) of the directive is sufficiently precise and unconditional also in so far as the consumer is entitled to a certain mini- 'Community law does not preclude a mum standard when it comes to asserting his national court from examining of its own remedies.

5 — See Case 8/81 Becker [1982] ECR 53. 6 — Joined Cases C-87/90, C-88/90 and C-89/90 Verholen and 4 — Cf. Articles 100 and 100a of the EC Treaty. Others [1991] ECR I-3757, point 1 of the operative part.

It may be inferred from this that, where all the other conditions are satisfied in order for 17. The Court has confirmed this stance, a provision of a directive to be directly appli- contrary to the view taken by its Advocate cable, a national court may apply the provi- General 8and many learned commentators, sion in question even where the beneficiary yet again in its judgment in Faccini Dori. 9 has not expressly relied upon it. For the The contrary view taken by myself in my court to take a Community provision into Opinion in that case related to directives account of its own motion is consonant with adopted after the entry into force of the Sin- the primacy of Community law and fosters gle European Act and the Treaty on Euro- the effective application of Community law pean Union. The directive at issue in these in the Member States. proceedings was adopted before those trea- ties entered into force. I am consequently unable to see any reason for proposing that the Court should go back on its case-law in that respect in this case.

1. Case-law to date on the 'horizontal direct effect' of directives

2. Effects of Article 129a of the EC Treaty with regard to the 'horizontal direct effect' of directives

16. In its case-law to date, the Court has refused to hold that directives may be applied directly to legal relations between private persons, that is to say that they may have so-called horizontal direct effect. 7 Its 18. Unlike in the case of the legal position underlying Faccini Dori, Article 129a has 7 — C A S E152/84 Marshall [1986] ECR 723. paragraph 48; Joined Cases 372/85 to 374/85 Traen and Others (1987] ECR 2141, paragraph 24; Case 14/86 Pretore di Salò [1987] ECR 2545. paragraph 19; Case C-221/88 B u s s e n i [1990] ECR I-495, 8 — My Opinion in Case C-91/92 in Faccini Dori [1994] ECR paragraph 23; Case C-106/89 Marleasing [1990] ECR I-4135, 1-3325, at I-3328 and I-3345, point 73. paragraph 6; Case C-91/92 Faccini Dori, cited in footnote 2, paragraph 20. 9 — Cited in footnote 2, paragrapli 24.

20. The plaintiff in the main proceedings considers that Article 129a is not capable of calling in question the case-law to date. The Contrary to the national court's assumption, principle of a high level of consumer protec- not all Treaty provisions have direct effect. tion is not a new one in the EC Treaty, but Lastly, there is nothing to prevent a provi- was already enshrined in Article 100a(3). It sion of the Treaty from being directly appli- would make no sense for the mere introduc- cable and a directive based on the provision tion of an article on consumer protection in in question not satisfying the requirements the Treaty to be able to change the whole of in order for it to be directly applicable. the Court's case-law on the direct applicabil- ity of directives. The proposition asserted by the national court implies that there are priv- ileged directives, which have horizontal directive effect per se, and non-privileged directives. The third paragraph of Article 189 affords no opening for such a distinc- tion.

22. The Government of the French Republic submits — in reliance on the Court's case- law to date — that Article 129a is not capa- ble of having direct effect. In order for indi- viduals to be able to rely on that provision 21. The Government of the Kingdom of before the national courts, it would have to Spain argues that Article 129a does not alter have direct effect. In no case, however, can

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the directive have effects which place a bur- (a) Interpretation of Article 129a of the EC den on individuals. Treaty

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3. Action adopted pursuant to paragraph of compliance with the principle of subsid- 2 shall not prevent any Member State from iarity. 10 Accordingly, even if Article 129a maintaining or introducing more stringent contained something novel, it would be sub- protective measures. Such measures must be ject to Community action being necessary compatible with this Treaty. The Commis- rather than action on the part of the Member sion shall be notified of them.' States.

28. According to Article 129a(1) of the EC Treaty, the Community has to strive for a 'high level of consumer protection'. Similar wording is also to be found in Article 100a(3) of the EC Treaty: 26. As a result of the Treaty on European Union, Article 3(s) of the EC Treaty confers on the Community the task of making 'a contribution to the attainment of a high level of consumer protection'. The key change in the Treaty in the sphere of consumer protec- 'The Commission, in its proposals (...) con- tion was the addition of Article 129a in Part cerning (...) consumer protection, will take as Three of the EC Treaty, which deals with a base a high level of protection.' Community policies.

That provision was introduced into the Treaty by the Single European Act, which means that the expression 'a high level of consumer protection' is not an innovation brought about by the Treaty on European Union.

27. It is conspicuous, in connection with Article 3(s) of the EC Treaty, that Article 129a(1) provides merely that the Community is to 'contribute' in the sphere of consumer protection, with the result that it was evi- dently intended also to leave leeway for 29. Nevertheless, the national court would competence on the part of the Member see the use of this expression in Article 129a States. Consequently, there is much to sug- of the EC Treaty as an innovation with gest that Article 129a of the EC Treaty sets out concurrent Community competence, which is therefore subject to the requirement 10 — See Article3b of the EC Treaty.

respect to Article 100a which is connected embody such an obligation if it were to be with the higher degree of political and legal the basis for the horizontal effect of a direc- integration introduced by the Maastricht tive on consumer protection. Treaty. In fact, however, it is clear already from the wording of Article 129a(l)(a) of the EC Treaty that reference was intended in the first place to be made only to the possibili- ties already available in the context of the completion of the internal market pursuant to Article 100a. The only way in which Arti- 31. Consequently, the question remaining cle 129a(1)(a) diverges from Article 100a is unanswered is what independent significance that the former provision commits the Com- Article 129a may have as compared with munity to achieving a 'high level of con- Article 100a of the EC Treaty. It may be sumer protection', whilst Article 100a puts assumed that a large number of measures in the Commission under a corresponding the context of the internal market will con- duty. 11 tain references to consumer protection. Con- sequently, in future measures based on Arti- cle 100a will invariably have to have regard also to Article 129a of the EC Treaty and to the aforementioned obligation on the part of the Community as a whole. Accordingly, as in the case of the comparable problems of the relationship between Article 100a and Article 130s, which have been resolved by the Court, Article 100a might have to be regarded as the more specific provision, compared with Article 129a, as regards con- sumer protection in the context of the inter- nal market. 12 30. At this point, it may be objected that precisely this extension of the obligation to the Community as a whole, that is to say, to all the Community institutions, including the Court, expresses the advance in terms of integration resulting from the Maastricht Treaty, which requires a higher degree of efficiency of Community law to be secured. 32. However, indent (b) of Article 129a(l) The requirement for efficiency (effet utile) contains an additional innovation inasmuch applies, however, still only in the context of as it as sets out for the first time competence the law in force and the existing division of on the part of the Community to take spe- powers. The obligation on the Community cific action in the field of consumer protec- with regard to consumer protection does not tion policy outside the ambit of measures embody any obligation on the Member relating to the internal market. 13 Previously, States or on individual Community citizens. However, Article 129a would have to 12 — Case C-300/89 Commission ν Council[1991] ECK I-2867, paragraph 25. 13 — Engelhardt in Lenz (ed.), EC-Verlrag, Kommentar, Article 11 — Sec Article 100.1(3) of the EC Treny. 129 a, note 8.

35. Indeed, it is even doubtful whether Arti- cle 129a has direct effect, which itself is a basic precondition in order to be able to rely on that provision in arguing that directives 33. It must therefore be considered as an should have direct effect. Article 129a of the intermediate finding that Article 129a(l)(a) EC Treaty does set the Community clear does not embody any qualitative change as aims, but, in view of its nature as a compared with Article 100a such as to justify competence-conferring provision, it leaves giving horizontal direct effect to consumer relatively large margins of discretion as protection directives. Only Article 129a(l)(b) regards its implementation. Consequently, it and Article 129a(2) and (3) embody a quali- lacks the very requirement that the provision tative enlargement of the former consumer in question should be sufficiently precise and protection under Community law. unconditional.

14 — See point 26 above. 15 — In point 31.

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36. Lastly, if it were to be held that direc- 37. It therefore remains to be stated that an tives have direct effect in view of Article amendment of the Court's case-law with 129a, this would entail consumer protection regard to the so-called horizontal effect of directives being treated differently than other directives is not necessitated by the introduc- directives. However, such differentiation is tion of Article 129a in the EC Treaty. not set out in the third paragraph of Article 189 of the EC Treaty and it does not appear that Article 129a contains a more specific provision than the third paragraph of Article 189.