Lodewijk Gysbrechts and Santurel Inter BVBA.

• Jurisdiction: European Union
• Celex Number: 62007CC0205
• ECLI: ECLI:EU:C:2008:427
• Docket Number: C-205/07
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 17 July 2008

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 17 July 2008 (1)

Case C‑205/07

Criminal proceedings against Lodewijk Gysbrechts and

Santurel Inter BVBA

(Reference for a preliminary ruling from the Hof van Beroep te Gent (Belgium))

(Articles 28 EC to 30 EC – Directive 97/7/EC on the protection of consumers in respect of distance contracts – Period for withdrawal – Prohibition of demand for an advance or for payment before the expiry of the period for withdrawal – Interpretation of a national provision as meaning that a credit card number cannot be required before the expiry of the period for withdrawal – Sale over the internet)

I – Introduction

1. In the present case, the referring court wishes to know whether Articles 28 EC to 30 EC preclude a provision of the Belgian Law of 14 July 1991 on commercial practices and the provision of information to and the protection of consumers (‘the Belgian Law on consumer protection’) by virtue of which, in the case of a distance contract, the vendor cannot demand any advance or payment whatsoever from the consumer before the expiry of the period for withdrawal of seven working days. In the context of this analysis, it is also necessary to determine whether those articles of the Treaty preclude the specific interpretation by the Belgian authorities of the abovementioned provision of the Belgian Law on consumer protection to the effect that, when concluding a distance contract, the vendor cannot require the consumer to provide his credit card number, even though the vendor undertakes not to use it to obtain payment before the expiry of the period for withdrawal. Consequently, the present case raises important questions concerning internet sales and associated credit card payments whereby internet sales are facilitated and also encouraged.

2. In a broader context, the present case provides a good illustration of how the arrangements and conditions for payment of the purchase price must also adapt to the development of the contract of sale. In Roman law, a contract of sale, for example, was performed by the vendor delivering the goods to the buyer and receiving from him the sale price; (2) the two obligations were therefore performed simultaneously. With the development of the contract of sale, the arrangements and conditions of payment have changed considerably and those changes have been even more marked with the development of new technologies. The arrangements for payment which must contribute to the security of payments, to simplicity and, if possible, to the protection of all the parties concerned must also adapt to the development of the technologies which permit electronic management and trading. When assessing the present case, it must also be borne in mind that electronic management and commerce and the associated credit card payments will be even more widespread in the future than they are today.

3. In the context of assessing Article 29 EC, the present case involves a discussion of the important question of the definition of measures having equivalent effect to quantitative restrictions on exports which, in settled case‑law, are limited to measures of the Member States which specifically restrict exports and which treat differently, in law or in fact, internal trade and patterns of export trade and which, in so doing, confer advantages on the domestic market.

II – Legal framework

A – Community law

4. Recital 14 in the preamble to 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 (OJ 1997 L 144, p. 19; ‘Directive 97/7’) states as follows:

‘… 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 …’

5. Article 6 of Directive 97/7 provides as follows:

‘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,

…

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. Unless the parties have agreed otherwise, the consumer may not exercise the right of withdrawal provided for in paragraph 1 in respect of contracts:

…

– for the supply of goods made to the consumer’s specifications or clearly personalised or which, by reason of their nature, cannot be returned or are liable to deteriorate or expire rapidly,

…’

6. Article 8 of Directive 97/7 reads as follows:

‘Member States shall ensure that appropriate measures exist to allow a consumer:

– to request cancellation of a payment where fraudulent use has been made of his payment card in connection with distance contracts covered by this Directive,

– in the event of fraudulent use, to be recredited with the sums paid or have them returned.’

7. Article 14 of Directive 97/7 provides as follows:

‘Member States may introduce or maintain, in the area covered by this Directive, more stringent provisions compatible with the Treaty, to ensure a higher level of consumer protection. Such provisions shall, where appropriate, include a ban, in the general interest, on the marketing of certain goods or services, particularly medicinal products, within their territory by means of distance contracts, with due regard for the Treaty.’

B – The Rome Convention

8. Article 5, entitled ‘Certain consumer contracts’, of the Rome Convention on the Law applicable to Contractual Obligations opened for signature in Rome on 19 June 1980 (OJ 1980 L 266, p. 1; ‘the Rome Convention’) is worded as follows:

‘1. This Article applies to a contract the object of which is the supply of goods or services to a person (“the consumer”) for a purpose which can be regarded as being outside his trade or profession, or a contract for the provision of credit for that object.

2. Notwithstanding the provisions of Article 3, a choice of law made by the parties shall not have the result of depriving the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence:

– if in that country the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and he had taken in that country all the steps necessary on his part for the conclusion of the contract, or

– if the other party or his agent received the consumer’s order in that country, or

– if the contract is for the sale of goods and the consumer travelled from that country to another country and there gave his order, provided that the consumer’s journey was arranged by the vendor for the purpose of inducing the consumer to buy.

3. Notwithstanding the provisions of Article 4, a contract to which this Article applies shall, in the absence of choice in accordance with Article 3, be governed by the law of the country in which the consumer has his habitual residence if it is entered into in the circumstances described in paragraph 2 of this Article.

…’

C – Belgian law

9. In Belgium the consumer’s right to withdraw in the case of distance contracts is governed by Article 80 of the Belgian Law on consumer protection.

10. Article 80(3) of the Belgian Law on consumer protection provides as follows:

‘Without prejudice to the application of Article 45(1) of the Law of 12 June 1991 on consumer credit, no deposit or any form of payment whatsoever may be required from the consumer before the end of the withdrawal period of seven working days referred to in paragraph 1.

If the right of withdrawal provided for in paragraphs 1 and 2 is exercised, the vendor shall repay the amounts paid by the consumer, without costs. This repayment shall be made within 30 days of the withdrawal.’

…’

III – Facts, main proceedings and question referred

11. Santurel Inter BVBA (‘Santurel’), whose business manager is Mr L. Gysbrechts, is a company specialising in the wholesale and retail sale of food supplements. Most of the sales are done over the internet, with the goods ordered being dispatched by post.

12. Following a complaint from a French customer, the Belgian Economic Inspection Board carried out an investigation as a result of which Santurel and Mr Gysbrechts were found guilty of offences under the distance-selling provisions of the Belgian Law on consumer protection. The offences consisted in failure to comply with Article 80(3) of the Belgian Law on consumer protection, which prohibits demands for an advance or payment from the consumer before the expiry of the period for withdrawal of seven working days. More specifically, the issue was the interpretation of that provision by the Belgian authorities to the effect that it is prohibited to require a consumer to provide his credit card number before the expiry of the period for withdrawal of seven working days.

13. In the criminal proceedings, the Court of First Instance at Dendermonde (Belgium) fined each of the accused EUR 1 250. They appealed to the Hof van Beroep te Gent (Court of Appeal, Ghent), which has referred to the Court a question for a preliminary ruling on whether the abovementioned Belgian provision is...