By Decision C-449/13 CA Consumer Finance SA / Ingrid Bakkaus and others, dated 18 December 2014, the Court of Justice of the European Union found that "the Directive does not specify whose incumbent to prove that the creditor has executed the obligations of informing and verification of trustworthiness, so this is a problem of internal legal order of each Member State. In this regard, it is necessary that the rules of national law be not less favorable than those governing similar domestic situations (principle of equivalence) and do not make impossible or excessively difficult, in practice, the exercise of rights conferred by the Directive (principle of effectiveness). "

Thus, in the Court's opinion, "the principle of effectiveness would be compromised if the burden of proof regarding no execution of the obligations of the creditor would be to the lender ", due to the fact that the latter has no means enabling him to demonstrate that the creditor has not provided the information required and did not check its creditworthiness. ”The principle of effectiveness is guaranteed if the creditor is obliged to justify in court, the proper performance of its pre-contractual obligations: a diligent creditor must be aware of the need to collect and preserve evidence on the performance of its obligations to provide information and explanations. "

Regarding the standard clause in the credit agreement in question, it is an indication in support of which the creditor must bring one or more relevant evidence. The Court states that "if such a clause would imply recognition by the consumer of full and fair enforcement of the pre-contractual obligations by the creditor, it would lead to a reversal of the burden of proof, which might prejudice the effectiveness of the rights recognized by the Directive."

As to whether the consumer's creditworthiness assessment can only be performed based on information reported by the latter, without achieving effective control of such information by other factors, the Court finds that "the Directive confers a discretion lender to the creditor, to determine whether the information available or not are sufficient to attest the consumer's creditworthiness and if it is necessary a verification by other elements. So, the creditor may, depending on the circumstances of the case, either to be content with the information supplied by the consumer, either to consider that it is necessary to obtain confirmation of this information (a control of the information provided by the consumer being not so systematically), taking into consideration that the mere unsupported assertions made by a consumer may not, in itself, be regarded as sufficient if not accompanied by supporting documents. "

 

On the other hand, the directive does not state that the assessment of the financial situation and consumer needs must be done before providing appropriate explanations. "There is not, in principle, a connection between these two pre obligations. The creditor is therefore able to give explanations to the consumer, without being obliged to assess, in advance, its creditworthiness. However, the creditor must take into account the consumer's creditworthiness assessment, to the extent to which this assessment requires an adaptation of the explanations given. "

The Court states that "the obligations of informing must, due to their re-contractual character, be fulfilled prior to signing the credit agreement, given that the explanations should not necessarily be provided in a specific document, but may be given orally by the creditor during a meeting. The Court recalls, however, that the form in which the explanation must be provided to the consumers falls under the national law. "