Pia Messner v Firma Stefan Krüger.

• Jurisdiction: European Union
• Celex Number: 62007CC0489
• ECLI: ECLI:EU:C:2009:98
• Docket Number: C-489/07
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 18 February 2009

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 18 February 2009 ¹(1)

Case C‑489/07

Pia Messner

v

Firma Stefan Krüger

(Reference for a preliminary ruling from the Amtsgericht Lahr (Germany))

(Protection of consumers in respect of distance contracts – Directive 97/7/EC – Right of withdrawal under Article 6 – 14th recital – Compensation for use of the goods supplied in the event of withdrawal within the withdrawal period – Concepts of ‘penalty’ and ‘charge’)

Table of contents

I – Introduction

II – Legal framework

A – Community law

B – National law

III – Facts and questions referred for a preliminary ruling

IV – Proceedings before the Court of Justice

V – Main arguments of the parties

VI – Legal assessment

A – Preliminary remarks

B – Preliminary considerations regarding the character and function of compensation for use

C – The stages of analysis resulting from the question referred

D – Does compensation come under the concept of penalty and is it not therefore compatible with Directive 97/7?

E – Does compensation come under the concept of charges and is it, for that reason, incompatible with Directive 97/7?

1. The concept of charges in Directive 97/7 – Interpretation based on the wording and the sentence structure

2. The concept of charges in Directive 97/7 – Teleological and schematic approach

3. A detailed analysis of the concept of distribution of risk underlying Directive 97/7 supports the interpretation adopted thus far

4. Failure to fulfil the duty to provide information and the consequences of such failure

5. May the possibility of abuse by individuals lead to rules which are detrimental to all consumers?

6. Distinguishing the case-law in Schulte and Crailsheimer Volksbank

7. Conclusion

F – For the sake of completeness, in the event that it is decided that compensation is not covered by the concepts of penalty or charge under Directive 97/7: does a provision on compensation fall within the regulatory discretion of the Member States?

VII – Conclusion

I – Introduction

1. The present reference for a preliminary ruling concerns the interpretation of Article 6(2) in conjunction with the second sentence of the first subparagraph of Article 6(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts. (2)

2. The main proceedings concern the rescission of a distance contract. The parties in the main proceedings are in dispute as to whether the defendant is entitled, in the context of repayment of the purchase price, to deduct from that price compensation for use by the applicant.

3. A feature of distance contracts is that the sale is not discussed in a shop. Neither in the preparations for the contract nor at the conclusion of the contract is there any personal contact between the seller – who is described more logically in this context as the supplier – and the consumer in the sense of simultaneous physical presence. (3) The contract is concluded under a specifically organised distance sales or service-provision scheme run by the supplier. (4) To that end, means of distance communication are used exclusively; ‘means of communication’ is given a broad definition in the context of Directive 97/7 under Annex I to that directive. It encompasses, on the one hand, long-established means of distance communication in the form of letters, printed matter, catalogues and telephone calls. On the other hand, it also includes new means of communication resulting from advancing developments which enable business and trade to be conducted using the internet and other media, such as videotext, videophone, electronic mail and teleshopping. In particular, consumer protection arrangements must also be adapted as the new technologies develop, without disregarding the interests of suppliers. In examining the present case, it must therefore also be borne in mind that business and trade using the internet and using similar modern media are likely to become much more widespread in future than is the case today.

II – Legal framework

A –Community law

4. The 14th recital in the preamble to Directive 97/7 states:

‘… the consumer is not able actually to see the product or ascertain the nature of the service provided before concluding the contract; … provision should be made, unless otherwise specified in this Directive, for a right of withdrawal from the contract; … if this right is to be more than formal, the costs, if any, borne by the consumer when exercising the right of withdrawal must be limited to the direct costs for returning the goods; … this right of withdrawal shall be without prejudice to the consumer’s rights under national laws, with particular regard to the receipt of damaged products and services or of products and services not corresponding to the description given in the offer of such products or services; … it is for the Member States to determine the other conditions and arrangements following exercise of the right of withdrawal’.

5.Article 5 of Directive 97/7 contains provisions regarding the information which suppliers must provide to consumers.

6.Article 6 of Directive 97/7 provides:

‘Right of withdrawal

1. For any distance contract the consumer shall have a period of at least seven working days in which to withdraw from the contract without penalty and without giving any reason. The only charge that may be made to the consumer because of the exercise of his right of withdrawal is the direct cost of returning the goods.

The period for exercise of this right shall begin

– in the case of goods, from the day of receipt by the consumer where the obligations laid down in Article 5 have been fulfilled;

....

If the supplier has failed to fulfil the obligations laid down in Article 5, the period shall be three months. The period shall begin

– in the case of goods, from the day of receipt by the consumer;

...

If the information referred to in Article 5 is supplied within this three-month period, the seven working day period referred to in the first subparagraph shall begin as from that moment.

2. Where the right of withdrawal has been exercised by the consumer pursuant to this Article, the supplier shall be obliged to reimburse the sums paid by the consumer free of charge. The only charge that may be made to the consumer because of the exercise of his right of withdrawal is the direct cost of returning the goods. Such reimbursement must be carried out as soon as possible and in any case within 30 days.

3. …’

B –National law

7.Directive 97/7 is transposed into German law in particular by Paragraph 312b et seq. of the Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’ (5)) and the provisions of the Verordnung über Informations‑ und Nachweispflichten nach bürgerlichem Recht (Regulation on the provision of information in civil law; ‘the BGB‑InfoV’ (6)).

8. Paragraph 312d of the BGB, which has the heading ‘Right of withdrawal and return in respect of distance contracts’, states:

‘1. In respect of a distance contract a consumer has a right of withdrawal under Paragraph 355. In the case of contracts for the supply of goods, the consumer may be granted a right of return under Paragraph 356 instead of the right of withdrawal.

2. In derogation from the first sentence of Paragraph 355(2), the withdrawal period shall not commence before the duties to provide information in accordance with Paragraph 312c(2) have been fulfilled; in the case of the supply of goods not before the date on which they are received by the recipient; in the case of recurrent supplies of goods of the same kind not before the date on which the first instalment is received by the recipient; and in the case of services not before the date on which the contract is concluded.’

9. Paragraph 355 of the BGB, which is headed ‘Right of withdrawal in respect of consumer contracts’, provides:

‘1. If a consumer is granted a statutory right of withdrawal under this provision, he shall no longer be bound by his declaration of intention to conclude the contract if he has withdrawn from it in good time. The withdrawal does not have to give any reasons and must be declared to the economic operator in writing or by returning the item within two weeks; the withdrawal period shall be deemed to be observed in the case of dispatch in good time.

2. The period shall commence when the consumer has been informed in writing by a clearly formulated notice of his right of withdrawal which makes clear to him his rights in accordance with the requirements of the means of communication used and which also states the name and address of the person to whom withdrawal is to be declared and refers to the beginning of the period and the rules in the second sentence of paragraph 1. If notice is given after the contract has been concluded, the period shall be one month in derogation from the second sentence of paragraph 1. If the contract is to be concluded in writing, the period shall not begin until the consumer has also been provided with a contract document, his written application or a copy of the contract document or of the application. If the time at which the period commences is disputed, the economic operator shall bear the burden of proof.

3. The right of withdrawal shall expire at the latest six months after the conclusion of the contract. In the case of the supply of goods the period shall not commence before the date on which they are received by the recipient. In derogation from the first sentence, the right of withdrawal shall not expire if the consumer is not given due notice of his right of withdrawal, and in the case of distance contracts concerning financial services it shall also not expire if the economic operator has not duly fulfilled his duties to provide information in accordance with Paragraph 312c(2)(1).’

10. Paragraph 357 of the BGB, which is headed ‘Legal consequences of...