Sunday, 7 February 2010

ECJ - Heinrich Heine

28 January 2010: ECJ Advocate General's opinion in case C-511/08 Heinrich Heine

Heinrich Heine is a German mail-order company. Its general conditions of sale provide that the consumer is to pay a flat-rate charge of EUR 4.95 for delivery, which the supplier will not refund in the event of withdrawal from the contract. A German consumer association brought an action against Heinrich Heine for an injunction to restrain it from charging consumers the cost of delivering the goods in the event of withdrawal as contrary to the aim of the Article 6 of the Distance Selling Directive 97/7/EC.

The German Supreme Court was not sure how to interpret provisions of the BGB (German Civil Code) in accordance with the Directive and issued a question whether these provisions are: 'to be interpreted as precluding national legislation which allows the costs of delivering the goods to be charged to the consumer even where he has withdrawn from the contract?'

The Advocate General argues that Article 6(1) gives consumers rights to withdraw from a distance contract 'without penalty and without giving any reason' which means that in principle the consumer should not suffer any negative consequences as a result of making a decision to withdraw from a contract. The only charge that may be made to the consumer because of the exercise of that right is the direct cost of returning the goods. According to the Advocate General the words 'only charge' require strict interpretation.

At the same time Article 6(2) obligates the supplier to reimburse 'the sums paid' by the consumer 'free of charge' in case of a withdrawal. The principle of 'full refund' means according to the AG that 'sums paid' includes not only the purchase price of the goods or the charge for the service provided, but also amounts paid by the consumer to the supplier in connection with the conclusion or performance of the distance contract, including delivery costs. (par. 34) The AG uses also a systematic argument pointing out the obvious difference between the term 'sums paid' that has been used in this provision and 'price' that has been used in some other provisions of that Directive. (par. 36)

The recommendation of the AG to ECJ is: 'Article 6(1), first subparagraph, second sentence, and Article 6(2) 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 are to be interpreted as precluding national legislation which, in the context of a distance contract, requires the cost of delivering the goods to be charged to the consumer after he exercises his right of withdrawal.'

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