In our opinion, the application of the JC Guidelines to authorities competent for supervising credit intermediaries under the MCD (Directive 2014/17/EU) is completely overdrawn.
Credit intermediaries as defined in Article 4 (5) in the MCD are conducting their business on behalf of the creditor. Namely, credit intermediaries do not carry out the same activity as credit institutions, they carry out the activity for credit institutions. As a rule, in civil law jurisdictions, the behaviour of one’s own tied agent is attributed to the creditor. Further, the creditor is already bound by the complaints-handling procedures and is part of an arbitration procedure, or an ADR scheme. In this case, it is sufficient if the intermediary refers to the ADR scheme his credit institution adheres to. In our opinion, it is therefore not necessary to have in place a “separate” complaints procedures for credit intermediaries as consumers are already provided with that kind of protection under Article 14 and 15 of the MCD.
The implementation of the JC Guidelines entails high administrative costs. The EBA itself states that in many cases natural persons do not have the capacity to meet the requirements of the Guidelines. After all, the guidelines are tailored to larger, work-sharing organizations rather than sole trader businesses. It would therefore be disproportionate if natural persons, as lending agents, had to implement the guidelines as well as larger companies. Instead, we urgently request the EBA to exempt credit intermediaries that are natural persons from the application of the Guidelines.
It is essential that the principle of proportionality applies when implementing the Guidelines. In the interests of legal clarity and legal certainty, the principle should be explicitly enshrined in the Guidelines. EIOPA has laid down this principle in the introduction (paragraph 5) of its Guidelines on complaints-handling insurance intermediaries.
In particular, the principle allows national supervisory authorities, when implementing the Guidelines, to consider not only whether the credit intermediary is a natural or legal person, but also for example, whether he is involved as tied agent in the complaint processing of the creditor and thus does not need its own guidelines for complaint handling.