The Federal Supreme Court (BGH) has ruled that a seller of goods in a distance selling transaction may not charge a consumer for the costs of sending the goods to the consumer if the consumer exercises his or her right of withdrawal or return.
The plaintiff was a consumer association. The defendant operates a mail order business. It charges its customers a flat rate of €4.95 per order for shipping the goods. The plaintiff sued the defendant for injunctive relief against the charging of such costs after the exercise of the right of revocation or return in distance selling transactions. The Regional Court upheld the action. The Higher Regional Court dismissed the appeal.
The mail order company's appeal was unsuccessful. The VIII. The VIII Civil Senate of the Federal Court of Justice had suspended the appeal proceedings and referred the question to the Court of Justice of the European Union (ECJ) for a preliminary ruling as to whether 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 (Distance Selling Directive) is to be interpreted as precluding a national provision under which the costs of sending the goods may be charged to the consumer even if he has cancelled the contract (order of 1 October 2008, press release no. 184/2008). The ECJ affirmed this and explained in justification that Article 6 of the Distance Selling Directive clearly pursues the goal of not discouraging the consumer from exercising his right of withdrawal. Therefore, an interpretation according to which the Member States of the European Union would be allowed to provide for a regulation that charges the consumer for the costs of delivery in the case of such a withdrawal would run counter to this objective (ECJ, Judgment of 15 April 2010 - Case C-511/08, NJW 2010, 1941).
On the basis of this interpretation of the Distance Selling Directive by the ECJ, which is binding on the national courts, Section 346 (1) of the German Civil Code in conjunction with Sections 312d and 357 of the German Civil Code must be interpreted in conformity with the Directive to the effect that the consumer is entitled to restitution of the costs incurred for the return of the goods after the revocation of a distance selling contract. Accordingly, sellers of goods in distance selling - such as the defendant in the case decided - are precluded from charging consumers for the costs of sending the goods they sell even if they exercise their right of withdrawal or return.
Judgment of the BGH of 7 July 2010 - VIII ZR 268/07
Lower courts:
Karlsruhe Regional Court - Judgment of 19 December 2005 - 10 O 794/05 (MMR 2006, 245)
OLG Karlsruhe - Judgment of 5 September 2007 - 15 U 226/06 (WM 2008, 419 = MMR 2008, 46)
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
