Eva Martín Martín v EDP Editores SL.

• Jurisdiction: European Union
• Celex Number: 62008CC0227
• ECLI: ECLI:EU:C:2009:295
• Date: 07 May 2009
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-227/08

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 7 May 2009 ¹(1)

Case C-227/08

Eva Martín Martín

v

EDP Editores, S.L.

(Reference for a preliminary ruling from the Audiencia Provincial, Salamanca (Spain))

(Directive 85/577/EEC – Consumer protection in respect of contracts negotiated away from business premises – Cancellation of the contract – Omission to inform the consumer of the right of cancellation – Appropriate consumer protection measures in cases where that information is not supplied – Relative and absolute nullity of the contract – Ex officio declaration)

Table of contents

I – Introduction

II – Relevant legislation

A – Community law

1. EC Treaty

2. Directive 85/577/EEC

B – The Charter of Fundamental Rights of the European Union

C – National law

III – Facts, main proceedings and question referred for a preliminary ruling

IV – Proceedings before the Court of Justice

V – Arguments of the parties

VI – Appraisal by the Advocate General

A – Introduction

B – Analysis of the question referred for a preliminary ruling

1. Introductory remarks

a) Provisions of Community law in respect of which the referring court has requested an interpretation

b) Issues raised by the question referred

2. Whether the relative nullity of the contract is an appropriate measure for the purposes of the third paragraph of Article 4 of Directive 85/577

3. General rule: There is no general obligation in Community law to make an ex officio assessment

4. Exception to the general rule: Case-law on Directives 93/13/EEC and 87/102/EEC

a) Case-law on Directive 93/13/EEC

b) Case-law on Directive 87/102/EEC

5. Applying the case-law on Directives 93/13/EEC and 87/102/EEC to the present case

6. Whether the national court is entitled or obliged to act of its own motion

C – Conclusion

VII – Conclusion

I – Introduction

1. This case raises the question whether a national court may, of its own motion, act and declare a contract negotiated away from business premises void because the consumer was not informed of his right of cancellation, even though the national law in force does not allow it to act of its own motion in such circumstances and the consumer who has not received such information must himself seek the annulment of the contract. The case concerns the interpretation of the provisions of the EC Treaty on consumer protection and the interpretation of the third paragraph of Article 4 of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (2) (‘Directive 85/577’) which provides that Member States must ensure that appropriate consumer protection measures are laid down in cases where the consumer has not been informed of his right of cancellation.

2. In the case of a contract negotiated away from business premises, the consumer’s right to cancel a contract of that kind, as well as his being given due notice of that right and the provision of appropriate and effective measures in cases where that information is not supplied to him play an essential part in the protection of consumers. Where a consumer concludes a contract of that kind, often he cannot estimate objectively all the consequences of the contract that will affect him. Since the consumer is the weaker party to the contract, it will be necessary to assess in this case whether, in order to secure the effective protection of his rights, national courts are required, in disputes dealing with such contracts, to ensure of their own motion that consumer rights are protected.

II – Relevant legislation

A – Community law

1. EC Treaty

3. Article 3(1) EC provides:

‘For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:

…

(t) a contribution to the strengthening of consumer protection;

…’

4. Article 95 EC provides:

‘…

(3) The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.

…’

5. Article 153 EC provides:

‘(1) In order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.

(2) Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.

(3) The Community shall contribute to the attainment of the objectives referred to in paragraph 1 through:

(a) measures adopted pursuant to Article 95 in the context of the completion of the internal market;

(b) measures which support, supplement and monitor the policy pursued by the Member States.

(4) The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, shall adopt the measures referred to in paragraph 3(b).

(5) Measures adopted pursuant to paragraph 4 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. The Commission shall be notified of them.’

2. Directive 85/577/EEC

6. The fourth, fifth and sixth recitals in the preamble to Directive 85/577 state:

‘Whereas the special feature of contracts concluded away from the business premises of the trader is that as a rule it is the trader who initiates the contract negotiations, for which the consumer is unprepared or which he does not expect; whereas the consumer is often unable to compare the quality and price of the offer with other offers; whereas this surprise element generally exists not only in contracts made at the doorstep but also in other forms of contract concluded by the trader away from his business premises;

Whereas the consumer should be given a right of cancellation over a period of at least seven days in order to enable him to assess the obligations arising under the contract; ^[(3)^]

Whereas appropriate measures should be taken to ensure that the consumer is informed in writing of this period for reflection.’

7. Article 1(1) of Directive 85/577 provides:

‘This Directive shall apply to contracts under which a trader supplies goods or services to a consumer and which are concluded:

...

– during a visit by a trader

(i) to the consumer’s home or to that of another consumer;

...

where the visit does not take place at the express request of the consumer.’

8. Article 4 of Directive 85/577 provides:

‘In the case of transactions within the scope of Article 1, traders shall be required to give consumers written notice of their right of cancellation within the period laid down in Article 5, together with the name and address of a person against whom that right may be exercised.

Such notice shall be dated and shall state particulars enabling the contract to be identified. It shall be given to the consumer:

(a) in the case of Article 1(1), at the time of conclusion of the contract;

(b) in the case of Article 1(2), not later than the time of conclusion of the contract;

(c) in the case of Article 1(3) and 1(4), when the offer is made by the consumer.

Member States shall ensure that their national legislation lays down appropriate consumer protection measures in cases where the information referred to in this Article is not supplied.’

9. Article 5 of Directive 85/577 provides:

‘(1) The consumer shall have the right to renounce the effects of his undertaking by sending notice within a period of not less than ^[(4)^] seven days from receipt by the consumer of the notice referred to in Article 4, in accordance with the procedure laid down by national law. It shall be sufficient if the notice is dispatched before the end of such period.

(2) The giving of the notice shall have the effect of releasing the consumer from any obligations under the cancelled contract.’

B – The Charter of Fundamental Rights of the European Union

10. Under the heading ‘Consumer protection’, Article 38 of the Charter of Fundamental Rights of the European Union (5) (‘Charter’) provides:

‘Union policies shall ensure a high level of consumer protection.’

C – National law

11. Directive 85/577 was transposed into Spanish national law by Law 26/1991 of 21 November 1991 on contracts concluded away from business premises (6) (‘Law 26/1991’).

12. Article 3 of Law 26/1991 provides:

‘1. The contract or contractual offer referred to in Article 1 must be set down in writing, in duplicate, must be accompanied by a cancellation notice, ^[(7)^] and must be dated and signed by the consumer in his own hand.

2. The contract document must include, in prominent letters immediately above the space allocated for the consumer’s signature, a clear and precise reference to the right of the consumer to revoke the consent given and to the conditions for and consequences of the exercise of that right.

3. The cancellation notice must include in a clearly visible form the words ‘cancellation notice’ and must state the name and address of the person to whom it must be sent and the particulars of the contract and the parties concerned.

4. Once the contract has been signed, the trader or the person acting on his behalf shall give to the consumer one copy of the contract and the cancellation notice.

5. The trader is responsible for proving that the obligations set out in this article have been complied with.’

13. Article 4 of Law 26/1991 sets out the consequences of failure to meet the requirements laid down in Article 3 and...