Abstract
New forms of consumer credit, alongside the use of big data and macroeconomic developments, necessitate the revision of the 2008 Consumer Credit Directive (‘CCD’). The impact assessment conducted by the European Commission should collect and use relevant evidence that help lawmakers identify and address problems for the internal market and consumer protection. The impact assessment acknowledges that CJEU case law and legal literature are relevant sources of evidence that should inform the revision of the CCD. An analysis of CJEU case law and legal literature reveals three possible regulatory failures: firstly, it is more complicated for legislators to address new forms of credit under maximum harmonization, especially as the scope of maximum harmonization is unclear, which renders the CCD more vulnerable to obsolescence. Secondly, the emphasis on information obligations does not reflect consumers actual decision-making, and thirdly, there appears to be insufficient enforcement of consumer rights under the CCD. The impact assessment rarely directly refers to CJEU case law and legal literature but reflects the existence of these regulatory problems. However, the problem analysis with regard to maximum harmonization and enforceability remains superficial and one-sided, and the draft CCD continues to allow for divergences. While the draft CCD further harmonizes enforcement, it does not indicate which civil law sanctions, as developed in CJEU case law, are effective, proportionate and dissuasive. Further, the impact assessment fails to benefit fully from behavioural insights and the draft CCD accordingly contains obligations to provide consumers with considerable, but not timely and salient, information. The impact assessment does convincingly address the shortcomings in the creditworthiness check, and the draft CCD accordingly proposes more stringent provisions on this topic, which, coupled with mandatory protection, which may well help to address overindebtedness
Published Version
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