Interpretation of Directive 97/7/EC (Distance Selling Directive)

On 20 January 2007, the plaintiff signed a form contract "Vertragsvereinbarung KombiSTA Strom & Gas" ("Contract Agreement KombiSTA Electricity & Gas") provided by the defendant, an electricity and gas supply company, according to which the defendant was to supply the plaintiff with electricity and gas from 1 March 2007 for a period of at least one year. By letter of 27 January 2007, the plaintiff revoked his declaration of intent of 20 January 2007 to conclude the contract.

In his action, the plaintiff sought, inter alia, a declaration that he had validly revoked his declaration of intent to conclude the KombiSTA Electricity & Gas contract agreement. He claimed that he was entitled to the right of withdrawal applicable to distance contracts. The Local Court dismissed the action. The Regional Court dismissed the plaintiff's appeal on the grounds that a right of revocation was excluded under section 312d(4)(1) BGB because electricity and gas were not suitable for return.

The VIII. Civil Senate of the Federal Court of Justice (BGH) suspended the appeal proceedings and referred the question to the Court of Justice of the European Communities for a preliminary ruling pursuant to Article 234 EC whether the provision of Article 6(3), indent 3, case 3 of Directive 1997/7/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 meaning that a right of withdrawal does not exist in respect of distance contracts for the supply of electricity and gas by pipeline.

The contractual agreement KombiSTA Electricity & Gas is a distance contract for goods. According to German law (§ 312d para. 1 sentence 1 BGB), the plaintiff consequently has a right of withdrawal if it is not excluded by § 312d para. 4 no. 1 case 3 BGB. This is unclear under national law. In the opinion of the Senate, the wording of the provision does indeed speak in favour of a right of withdrawal not existing in the case of the supply of electricity and gas by conduction, which are intended for immediate consumption by the customer, because a return of the goods by the consumer is ruled out. According to the explanatory memorandum, however, the provision is intended to cover not so much the case of the actual impossibility of returning the goods, but rather cases in which a right of withdrawal and the return of the goods are unreasonable for the trader - just as in other cases regulated in Section 312d (4) BGB. Withdrawal is not unreasonable for the trader in the case of goods which, like electricity and gas, are intended for consumption by the customer and have already been consumed at the time the withdrawal is exercised. This is because the obligation to return the goods is replaced in these cases by an obligation to compensate the consumer for the value pursuant to section 346 (2) sentence 1 no. 2 BGB. From this it is concluded in the literature that the consumption of the goods is irrelevant for the existence and exercise of the right of withdrawal. Accordingly, a right of withdrawal could also be assumed in the case of the supply of electricity and gas by pipeline.

Since the national legislator has deliberately taken over the exception in Article 6(3), indent 3, case 3 of the Distance Selling Directive verbatim with Section 312d(4) no. 1, case 3 of the German Civil Code, the interpretation of Section 312d(4) no. 1, case 3 of the German Civil Code depends, in the view of the Senate, on whether Article 6(3), indent 3, case 3 of the Distance Selling Directive, with its exclusion of the right of withdrawal for contracts for the supply of goods which, due to their nature, are not suitable for return, also applies to electricity and gas contracts. 6(3), indent 3, case 3 of the Distance Selling Directive also covers electricity and gas supply contracts with the exclusion of the right of withdrawal in the case of contracts for the supply of goods which, due to their nature, are not suitable for return.

In addition to the wording of the provision, systematic considerations indicate that this is the case. According to Art. 6(1) sentence 2, (2) sentence 2 of the Distance Selling Directive, the only costs that can be imposed on the consumer as a result of exercising his right of withdrawal are the direct costs of returning the goods. This could be incompatible with an obligation to pay compensation, as exists under German law in the case of consumption of the goods. However, since without such a duty the withdrawal would be unreasonable for the trader, Article 6(1) sentence 2, (2) sentence 2 of the Distance Selling Directive could argue that in the case of goods intended for consumption and actually consumed - and thus also in the case of the supply of electricity and gas by pipeline - the right of withdrawal is excluded under Article 6(3) indent 3 case 3 of the Distance Selling Directive.

On the other hand, the purpose of the right of withdrawal is to give the consumer a right to dissolve the contract after delivery of the goods because he has no opportunity to see the product beforehand. This also applies to goods intended for consumption. In view of this, Art. 6(1) sentence 2, (2) sentence 2 of the Distance Selling Directive could possibly also be interpreted to the effect that the provision only concerns costs in connection with the actual return of the goods, but does not preclude a claim for compensation - and therefore also a right of withdrawal - in the case of consumed goods. This would optimally realise the meaning and purpose of the right of withdrawal, especially if the contract - as in the case to be decided - is directed at the recurring delivery of similar goods and the obligation to pay compensation only applies to a partial delivery.

Since it cannot be determined with sufficient certainty how Article 6(3), indent 3, case 3 of the Distance Selling Directive is to be interpreted with regard to electricity and gas supply contracts, the answer to the question referred is reserved for the decision of the Court of Justice of the European Communities.

§ Section 312d (4) BGB reads in part:

"Unless otherwise provided, the right of withdrawal does not apply to distance contracts.

1. for the delivery of goods that are manufactured according to customer specifications or are clearly tailored to personal needs or are not suitable for return due to their nature or can spoil quickly or whose expiry date would be exceeded,

2. for the delivery of audio or video recordings or of software, provided that the delivered data carriers have been unsealed by the consumer,

3. for the delivery of newspapers, periodicals and magazines, ..."

 

Article 6 of the Distance Selling Directive reads in part:

"Right of withdrawal

(1. The consumer may withdraw from any distance contract within a period of at least seven working days without giving any reason and without penalty. The only costs which may be imposed on the consumer as a result of exercising his right of withdrawal shall be the direct costs of returning the goods. ...

(Where the consumer exercises the right of withdrawal in accordance with this Article, the supplier shall reimburse the payments made by the consumer free of charge. The only costs that may be imposed on the consumer as a result of exercising his right of withdrawal shall be the direct costs of returning the goods. The refund shall be made as soon as possible and in any event within 30 days.

(3. Unless otherwise agreed by the parties, the consumer may not exercise the right of withdrawal provided for in paragraph 1 in the case of

- contracts for the provision of services the performance of which has begun, with the consumer's consent, before the end of the period of seven working days referred to in paragraph 1;

- contracts for the supply of goods or the provision of services, the price of which depends on the development of rates on the financial markets over which the supplier has no control;

- Contracts for the delivery of goods that are manufactured according to customer specifications or are clearly tailored to personal needs or are not suitable for return due to their nature or can spoil quickly or whose expiry date would be exceeded;

- contracts for the supply of audio or video recordings or software which have been unsealed by the consumer;

- contracts for the supply of newspapers, periodicals and magazines;

- contracts for the provision of betting and lottery services. ..."

 

Decision of the BGH of 18 March 2009 - VIII ZR 149/08

Lower courts:

AG Aachen - Judgment of 22 November 2007 - 80 C 124/07

Aachen Regional Court - Judgment of 16 May 2008 - 5 S 233/07

 

Source: Press release no. 59/2009 of the Federal Supreme Court of 18 March 2009

 

Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

E-mail:. m. ullrich@goldberg.de

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