Case C-848/26, Hoist Italia – the lender that did not check, and the buyer that did not lend
The duty to check whether a borrower can repay is the creditor’s. When the credit is sold, the duty has already been breached and the creditor has gone. A court in Lombardy asks whether the remedy has gone with it.
Facts
V.D. is in proceedings against Hoist Italia Srl before the Tribunale di Busto Arsizio. Hoist is the assignee of a consumer credit whose original lender, the referring court’s question assumes, did not properly assess V.D.’s creditworthiness before the agreement was concluded, as Article 8 of Directive 2008/48/EC requires. Under the Italian system of penalties for that breach, as the court describes it, the consumer may bring an action only against the original creditor, to establish its pre-contractual liability and to claim compensation for the damage caused. Nothing can be asserted against the assignee now collecting the debt. The court asks whether Article 8, read with Article 23 on penalties and in the light of Article 38 of the Charter and Articles 12 and 169(1) TFEU, precludes that system. (The case name is the Court’s.)
Questions Referred
Does Article 8 of Directive 2008/48/EC, read in conjunction with Article 23 of that directive, and in the light of Article 38 of the Charter of Fundamental Rights of the European Union, Article 12 TFEU and Article 169(1) TFEU, preclude a national system of penalties under which, in the event of a breach by the creditor of its pre-contractual obligation to assess the consumer’s creditworthiness, the consumer can bring an action only against the original creditor to establish its pre-contractual liability and to seek compensation for the damage caused.
Sources
OJ notice C/2026/5059 (EUR‑Lex) · Case file on CURIA · Directive 2008/48/EC
Comment
Article 8(1) requires that “before the conclusion of the credit agreement, the creditor assesses the consumer’s creditworthiness on the basis of sufficient information”. Article 23 leaves the penalty to Member States but requires it to be “effective, proportionate and dissuasive”. The Court has already tested a national penalty against that standard. In Case C‑565/12, LCL Le Crédit Lyonnais (ECLI:EU:C:2014:190) it held that Article 23 precludes a French system under which a creditor that failed to check creditworthiness forfeited contractual interest but was automatically entitled to statutory interest, increased after judgment, where the amounts it was likely to receive were “not significantly lower” than those it would have received had it complied — a penalty that in practice cost the creditor little. The question in Busto Arsizio has the same shape from a different angle: not whether the penalty bites hard enough, but whether it bites on anyone the consumer can still reach.
The Italian rule makes sense on its own terms. The duty to assess creditworthiness belongs to the lender, and an assignee that bought the loan later did not breach it; liability in damages for a pre-contractual fault naturally lies with the party at fault. But the consumer’s practical position is the problem. Consumer credit portfolios are routinely sold, often precisely when they go bad, and the consumer’s interest in raising the lender’s failure arises when someone demands payment — by then, usually the assignee. A remedy confined to a separate damages action against a creditor that has sold the debt, and may no longer be solvent or present, does little to deter careless lending, which is what Article 23 is for.
Article 17(1) of the same Directive provides that, on assignment, “the consumer shall be entitled to plead against the assignee any defence which was available to him against the original creditor”. If the Italian penalty for breach of Article 8 operated as a defence — reducing what the consumer owes, as the French forfeiture of interest did in LCL — Article 17 would carry it to Hoist. Because it is cast instead as an action for damages, it does not. That is the gap the referring court is pointing to, and it is the same gap from the other side as Banca Sistema (C‑769/26), where an Italian justice of the peace asks whether a consumer may sue either the assignor or the assignee over an unfair term. Between them the two references ask the Court to say how much of a consumer’s protection survives the sale of the loan — and, in a market where consumer debt is bought and sold in bulk, that is most of the protection that matters.