With this, it overturns the BGH's ruling from 2016. At the same time, it establishes a requirement that all in Germany from 11. June 2010 closed consumer contracts do not fulfill. These could now be freely revocable. A judgment that has the potential to cause a sensation.
Facts
In 2012, a consumer entered into a loan agreement secured by a real estate lien with Kreissparkasse Saarlouis for 100.000 € with a term expiring on 30. November 2021 bound debit interest rate of 3.61% per annum. Clause 14 of the contract contained the following provision:
The borrower may cancel his contractual declaration within 14 days without giving reasons in text form (z. B. letter, fax, e-mail) revoked. The period begins after the conclusion of the contract, but only after the borrower has provided all obligatory information according to § 492 para. 2 Civil Code (z. B. Information on the type of loan, information on the net amount of the loan, information on the term of the contract) has received."
The mandatory information itself is defined in § 492 para. 2 BGB not received. Instead, the standard refers to Article 247 §§ 6 to 13 of the Introductory Act to the German Civil Code (EGBGB) and thus to a large number of other provisions, which in turn refer to further provisions (so-called. Cascade reference).
On 30. January 2016, the consumer declared in writing to Kreissparkasse Saarlouis the revocation of his contractual declaration.
The district savings bank took the position that it had properly informed the consumer of his right of withdrawal and that the withdrawal period had therefore expired.
Subsequently, the consumer brought an action before the Regional Court of Saarbrucken. In order to answer the question of whether a proper cancellation notice was given, the Saarbrucken Regional Court, ECJ submission of 17.01.2019 – 1 O 164/18, the ECJ in a reference for a preliminary ruling on the interpretation of the Directive on consumer credit agreements (Directive 2008/48/EC).
Admissibility of the preliminary ruling proceedings
The Saarbrucken Regional Court drew attention to the fact that the directive in question did not apply to credit agreements secured by real estate liens. However, the German legislator had made use of the possibility to extend the scope of the directive to this case. For this reason, it held that the ECJ had jurisdiction and that an interpretation of the directive was necessary. The ECJ shared the view. There is a clear interest of the Union in a uniform interpretation. A presumption speaks for the decision relevance of the questions. According to the court, this also cannot be refuted.
Decision of the ECJ
In its ruling, the ECJ took Art. 10 Abs. 2 Book. (p) the directive reference that the credit agreement must state "in a clear, concise manner", among other things, the time limit and other modalities for exercising the right of withdrawal. According to the judges, the conditions for the start of the right of withdrawal also fall under the provision. Otherwise, the effectiveness of the right of withdrawal would be seriously weakened.
According to the ECJ, the clause in dispute does not meet these requirements. In other words, it does not clearly and concisely indicate the start of the withdrawal period. The consumer could not determine the scope of his contractual obligations on the basis of the contract, nor verify whether the contract concluded by him received all the necessary information, and a fortiori whether the withdrawal period has begun to run for him.
Consequences of the ruling: thousands of contracts are in limbo
The ruling is particularly explosive because it contradicts a ruling of the BGH from 2016 (BGH, ruling of 22.11.2016 – XI ZR 434/15). This was of the opinion that the clause clearly and understandably informed about the start of the cancellation period. This case law has now been overturned by the ECJ.
A ruling that could have an exorbitant impact. Corresponding clauses can be found in all consumer loan agreements concluded as of 11 December 2009. June 2010 were closed. As reported by the Suddeutsche Zeitung, almost 20 million car loan and leasing contracts with a volume of 340 billion euros could be affected. New doors could now open, especially for customers who have been victims of the diesel scandal. In the case of private construction loans, a loan amount of as much as 1.2 trillion is said to be at stake. Affected parties are offered the opportunity to conclude a contract with more favorable interest rates after revoking their contractual declaration or to withdraw from the contract without having to pay an early repayment penalty.