учебный год 2023 / Rott, Consumer Guarantees in the Future Consumer Credit Directive

87/102/EEC, guarantees given by family members as a special category of guarantees.128 Taking the Buet case in consideration, one should conclude that the Member States remain competent to regulate this law of this specific group of guarantors since the Directive does not address the issue at all.

4.5Conclusion

It is difficult to predict how the ECJ would define the precise limits of the maximum harmonisation clause of Article 30(1) of the proposed Directive. For example, there may still be room for specific rules for the protection of the most vulnerable group of guarantors, the close relatives of the borrower. Nevertheless, it is fairly obvious that Member States will be prohibited to go beyond the information duties or the formal requirements established by the proposed Directive, or to introduce the guarantor’s right to withdraw from the contract. Thus, Member States will certainly lose some of the traditional mechanisms used for protecting consumer guarantors.

5A High Level of Consumer Protection?

Bearing the analysis of the proposal and its lacunae in mind, one might be inclined to question the amended proposal’s compliance with Article 95(3) EC. Again, this would depend on the interpretation of the rules of the proposed Directive. In a narrow interpretation, these proposed rules are not exactly protective, which becomes clear when looking at the low formal requirements that are barely compensated by other protective instruments. Moreover, the Directive does not regulate on guarantees contracts in a comprehensive way but does not touch on a number of issues. Even with general contract law rules still in place, it appears unacceptable to take the guarantees rules of the Directive as a total harmonisation of this area of law. Thus, if these rules were the maximum set of provisions for the protection of consumer guarantors that are allowed to the Member States, one could not possibly talk of a ‘high level of consumer protection’ as required by Article 95(3) EC. Even though this ‘high level of consumer protection’ may be difficult to assess, Article 95(3) EC must be regarded not only as a programmatic statement but as a legal principle that is subject to judicial review. And although the ECJ may be cautious to hold a Directive invalid for failing to achieve this aim, the rules on consumer guarantees seem to be a strong candidate for a first ECJ decision of this kind. Given the lack of comparative research into this field of law, and the lack of explanations as to why the proposed rules on guarantees are deemed appropriate, the Commission would have greatest difficulties to justify its approach.

Thus, compliance with Article 95(3) EC would probably require a twofold approach: First of all, the provisions on consumer guarantees of the Directive would have to be interpreted in a consumer friendly manner, and second, they would have

128 See COM(95) 117 final, at 107.

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to be taken as an incomplete regulation of consumer guarantees law that Member States are allowed to complement by rules that do not simply go beyond the specific rules of the Directive but that regulate on other matters.

6Conclusions

The amended proposal for a new Consumer Credit Directive has been criticised by many for its consumer credit provisions. With respect to guarantee contracts, however, it is unacceptable in its current shape. The proposed rules are at best too vague and need much clarification as to their meaning but also as to the protective instruments that shall be banned in future. The solution of these questions must not be simply conferred on the ECJ. Rather, the Member States must be able to make an informed decision when adopting the Directive.

In a worst case scenario, i.e. if the rules provided by the Directive were interpreted narrowly and viewed as excluding complementing national legislation, they would certainly be inadequate and insufficient. Therefore, at the very least, an amendment should be made to exempt guarantees law from maximum harmonisation, otherwise the proposed Directive would be in breach of Article 95(3) EC.

Finally, the limited scope of application, that leaves out guarantees for business loans as well as guarantees for all sorts of consumer credit contracts that are, for various reasons, excluded from the scope of application of the Directive, may lead to the multiplication of consumer guarantees regimes at national level, one being determined by the Directive, another one being inspired by concepts aiming primarily at the social protection of consumer guarantors. Instead of creating such chaos, and even though some few elements of the proposal may ameliorate the guarantor’s legal position, it appears preferable to reduce the Directive to consumer credit only and to create a separate Directive on consumer guarantees law. This, however, would require solid comparative research in the field of guarantees law,129 including a comparison of the practical effects of instruments, that have been introduced in national legal orders, on the protection of guarantors and also on the credit markets.

129 The comparison provided in COM(95) 117 final is certainly insufficient and also outdated.

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