Guest post: New cancellation joker? ECJ strengthens consumer rights. By Christian shoulder

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With its judgment of March 26, 2020 (Az. C-66/19) the European Court of Justice (ECJ) declared a clause in the cancellation policy used in millions of German credit agreements to be contrary to the directive. Are affected almost all consumer credit contracts, especially real estate loan contracts as well as car loan and leasing contracts that since June 11, 2010, have been completed.

What exactly is it about?

The decision of the ECJ concerned the assessment of the following clause:

"The period begins after the conclusion of the contract, but only after the borrower has received all the mandatory information in accordance with Section 492 (2) of the German Civil Code (e.g. information on the type of loan, information on the net loan amount, information on the contract term). ... "

What was decided?

The CJEU ruled that this clause was not clear enough for the consumer because it contained a so-called "cascade reference". What is meant is that the named Civil Code § 492 on the Article 247 §§ 6 to 13 of the EGBGB refer, which on the one hand again refers to other laws. It is unreasonable for the consumer to read independently through various laws, only to find out whether all the requirements for the start of the period have been met. The ECJ thus clearly opposed the opinion of the Federal Court of Justice (BGH), which had already considered the cancellation policy to be correct. The clearness with which the CJEU considered the cancellation policy presented here to be contrary to European law can already be seen from the fact that the CJEU waived the otherwise usual Opinion and decided directly on the case.

two essential statements on the requirements for proper cancellation policy

  • On the one hand, revocation instructions and in particular the information contained therein Withdrawal period "in a clear and concise form" can be specified. For example, the integration of revocation and deadline information into the body of the loan agreement - as was done by many credit institutions and savings banks - should not be sufficient.
  • On the other hand, with regard to the mandatory information, reference may not only be made to paragraphs which in turn refer to other regulations. Such "Cascade references“Are for consumers confusing and complicated.

But it is not as clear as it sounds now. The Federal Court of Justice (BGH) has already declared a cascade reference to be permissible in another procedure. The ECJ now sees it differently. What applies now?

so-called "legal fiction"

European law actually comes before national law. However, German banks can rely on the so-called "legal fiction" for their revocation instructions. This means: by the fact that the pattern instruction is written down in the law, it develops a protective effect for the user, insofar as it is legal Sample text for your cancellation policy unchanged have used.

An interpretation within the meaning of the ECJ against the wording of this legal model text is therefore problematic and in another case the BGH has already denied an interpretation against German law, ie "contra legem". So it will be shown how in the proceedings here in Germany to which the ECJ referred and in particular the BGH will decide. It could therefore be that, despite the clear decision of the ECJ, the "legal fiction" of the model instructions is maintained.

The situation is different if the users of the instruction, usually the banks, Changes to the cancellation policy have made. In this case, the protective effect is not applicable. This has been the case very often in the past, as many banks have made independent changes or additions to the instructions. Even very slight deviations are sufficient. In addition, it is also not necessary that the deviations must relate to this point in the cancellation policy. In all of these cases, the judgment of the CJEU has considerable consequences, since the right of withdrawal continues to exist and the period never started to run. It should therefore be a new “eternal right of withdrawal”.

Consequences for practice

All loan agreements, real estate finance, car finance and leases, the after June 11, 2010 - the entry into force of the Consumer Credit Directive - should be checked for revocability. This can save a lot of money. While in spring 2011 construction financing over 20 years cost an average of 4,7 percent interest, it is currently only about 1,2 percent. It should be noted, however, that contracts for real estate consumer loans are likely to be considered until March 20, 2016, since the legislator passed the law on March 21, 2016 to implement the residential real estate loan directive and for many real estate loan contracts the "perpetual right of withdrawal" on March 21 June 2016 ended.

However, the revocation can also make sense for car financing and leasing contracts, since it is easy to get out of a current contract. You return the car and in return all the installments paid, including the down payment, are returned by the bank (subject to any usage compensation).

Borrowers, whether real estate or car, should have an uncomplicated check carried out to see whether their contract can be revoked. Even in cases where the lender has used the sample text, the ECJ's decision may well indicate that it is willing to accommodate.

Either way, the consumer emerges from the decision of the CJEU significantly stronger.

Christian M. shoulder

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