Judges F Biltgen, J Malenovský, CG Fernlund (Rapporteur), LS Rossi
Advocate General M Szpunar
The borrower, who was resident in Iceland, borrowed more than €1,000,000 from a Luxembourg bank in order to acquire shares in the Icelandic company in which she was an employee. Subsequently, the bank was divided into two entities, one of which was the claimant. Since the borrower was in default of repayment of the loan, the claimant brought an action before the Luxembourg courts pursuant to a term of the loan agreement conferring jurisdiction to those courts. However, the District Court, Luxembourg, held that jurisdiction for a contract for a loan repayable by instalments was determined by the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (2007) (“the Lugano II Convention”) which provided in article 16(2) that proceedings could only be brought against a consumer in the courts of the state in which the consumer was domiciled. That decision was upheld on appeal. The claimant appealed to the Court of Cassation submitting that in order to determine whether a loan agreement was a “contract concluded by a consumer” within the meaning of article 15 of the Lugano II Convention, it was necessary to determine whether that agreement was a “consumer credit agreement” within the meaning of article 2(2)(c) of Parliament and Council Directive 2008/48/EC, which applied only to credit agreements involving credit between €200 and €75,000, unless national law transposing the Directive provided for a higher ceiling, which it did not. The Court of Cassation stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether article 15 of the Lugano II Convention meant that, for the purposes of ascertaining whether a credit agreement was concluded by a “consumer”, it was necessary to determine whether the agreement fell within the scope of Directive 2008/48 in the sense that the total cost of credit in question did not exceed the ceiling set out in article 2(2)(c) of that Directive and whether it was relevant, in that regard, that the national law transposing that Directive did not provide for a higher ceiling.
On the reference—
Held, that it was clear from article 15 of the Lugano II Convention and from article 3 of Directive 2008/48 that the concept of a “consumer” was defined in broadly identical terms as referring to a person who had concluded a contract or acted for purposes “outside his trade, business or profession”. However, the Lugano II Convention and Directive 2008/48 pursued different aims. Directive 2008/48 aimed to harmonise certain aspects of law on consumer credit agreements, imposing, inter alia, pre-contractual information duties on the lender. The Lugano II Convention did not seek to harmonise the law on consumer contracts, but provided rules that determined which court had jurisdiction to hear a case in civil and commercial matters, in particular, in respect of a contract between a trader or professional and a person acting outside his trade or profession, in order to protect the latter in such a case. In pursuing that objective, the Convention did not provide for a scope limited to any particular amounts and covered all types of contracts except for those stipulated in article 15(3). Having regard to the distinct purposes of Directive 2008/48 and of the Lugano II Convention, the fact that a credit agreement did not fall within the scope of Directive 2008/48 on the ground that the total amount of credit was above the ceiling of €75,000 in article 2(2)(c) of that Directive had no bearing on determining the scope of article 15 of the Lugano II Convention. A consumer who concluded a credit agreement for more than the ceiling was not any less deserving of the protection set out in article 15 of the Lugano II Convention and the fact that the ceiling provided by national law did not exceed that set out in Directive 2008/48 was also irrelevant in determining whether a credit agreement fell within the scope of article 15 of the Lugano II Convention (judgment, paras 31, 37, 40, 42–43, 45–46, 48, operative part, para 1).
A Moro for the claimant.
M Mailliet for the borrower.
D Holderer, agent, for the Luxembourg Government.
L Inez Fernandes, M Figueiredo and P Lacerda, agents, for the Portuguese Government.
M Schöll, agent, for the Swiss Government.
M Heller and M Wilderspin, agents, for the European Commission.