Brussels, 19/12/2014 (Agence Europe) - Although Community law makes creditors responsible for the obligation to provide information and explanations so that borrowers can make an informed choice when subscribing to a loan, it fails to specify who is responsible for proving that creditors have indeed fulfilled these obligations.
In a verdict (case C-449/13) returned on Thursday 18 December, the Court of Justice clarified this grey area. It is not the responsibility of the consumer to provide proof that the creditor has failed to fulfil its obligations, it finds. The reason for this is that there are quite simply not the resources. It is the responsibility of the creditor to collect and retain evidence that it has carried out its information and explanation obligations.
Having made this observation, the Court went on to clarify what specifically these obligations consist of. A standardised clause included in the loan contract, as in the case at hand (EUROPE 11154), is not enough on its own to determine that the borrower has indeed familiarised himself with the sheet of standardised European information. The creditor must use one or more elements of relevant evidence to corroborate the fact that the pre-contractual information obligation incumbent upon it has been complied with.
As regards the obligation to check the creditworthiness of the consumer, the Court recognises that the creditor has considerable leeway in this matter. Although simple declarations by the consumer not borne out by evidence are not sufficient, it is up to the creditor to determine whether the information available is sufficient or not. On a case-by-case basis, it may decide to verify this information. Additionally, the assessment of the financial situation of the consumer does not necessarily need to be carried out before the creditor provides explanations on the loan, given that the set of information obligations must be fulfilled before the contract is signed. These information obligations do not necessarily have to be included in the specific document, as a verbal discussion is sufficient, the Court concluded. (JK)