Thursday, 15 April 2010

No charge!... I'm talking to you, too, delivery costs! - ECJ in Heinrich Heine C-511/08

15 April 2010: ECJ case C-511/08 Heinrich Heine
In one of the previous posts I discussed the opinion of the AG in the case C-511/08 Heinrich Heine. It concerned the interpretation of Article 6 of the Distance Selling Directive 97/7/EC which gives consumers a right of withdrawal in case they concluded a contract through means of distance communication. Today the ECJ gave its judgment on this subject matter, supporting the opinion of the AG - which is a good news for the consumers all over Europe.

In general, according to Article 6, consumers are free to use the right of withdrawal within 7 days from the day of concluding the contract without having to pay any charges. Everything they paid for the good to the seller should also be returned to them. The only charge that the consumers might have to make is the direct cost of having to return the good to the seller. Since it is the consumer that chooses the method of returning the good to the seller, it makes sense that he will have to pay for it.

Heinrich Heine was a mail order company that decided to have its clients pay EUR 4.95 for delivery, which the supplier will not refund in the event of withdrawal from the contract.

The question brought to ECJ was whether provisions of the Directive 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national legislation which allows the costs of delivering the goods to be charged to the consumer even where he has withdrawn from the contract?'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 answer of the ECJ followed closely the opinion of the AG. The phrase 'the only charge that may be made to the consumer' should be interpreted strictly. (Par. 46) The Directive does not make a distinction between the price of the goods and the delivery costs but talks about the necessity of returning the 'sums paid'. (Par. 45) Furthermore, the ECJ notices that if the consumers had to pay back the delivery costs, that charge might dissuade them from using the right of withdrawal altogether which goes against the protection of the Directive (Par. 56) and that effect is not diminished by the consumer being aware of the amount of the delivery costs. (Par. 58) Additionally, charging the consumers with the costs of delivery and the costs of returning the goods, would distort the balance in payment for transporting the goods between the parties. (Par. 57)

Decision:

Suppliers are not allowed under a distance contract to charge the costs of delivering the goods to the consumer where the latter exercises his right of withdrawal.

One could not agree more with this decision of the ECJ. It does not come difficult, to imagine a following situation:

- Hello? I saw on TV your advertisement for this new drink to lose weight. I would like to buy it for the price of 5 euro that you mentioned.

- Yes, of course. We charge 5 euro extra for delivery.

- Alright. I can use my right of withdrawal, right?

- Yes, sir. On our website you may found all provisions that will be applicable to this contract.

- Alright. *address and bank account number data follows*

3 days later.... SURPRISE! If you use your right of withdrawal you will not get back 10 but only 5 euro since the supplier will keep the delivery price and you will still have to pay, say, 3 euro for returning the goods. Most consumers would decide it is not worth the effort to withdraw from the contract in such a situation and the protection offered by the Directive would indeed be practically non-existent. Luckily, the ECJ saw through this possibility.

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