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Case Details

Case Details
National ID 15 U 226/06
Member State Germany
Common Name link
Decision type Other
Decision date 05/09/2007
Court Oberlandesgericht (Appellate court, Karlsruhe)
Subject
Plaintiff
Defendant
Keywords

Distance Selling Directive, Article 6, 1. Distance Selling Directive, Article 6, 1.

If an entrepreneur imposes the costs for the return shipment on the consumer after the consumer exerts his right to withdraw from a distance sale contract and fully returns the goods, this constitutes an infringement of § 2(1)(1) UKlaG (Unterlassungsklagengesetz - Injunction Act)
An interpretation of §§ 312d(1)(2), 356(1), 357(1)(1), 346 BGB in the light of the Directive 97/7/EC on Distance Sales of 20 May 1997 leads to the conclusion that the consumer can also demand reimbursement of the sum paid for the shipment of the supplied goods to his place.
The parties are fighting over a flat fee for shipping and handling which had been charged by the plaintiff in connection with the unwinding of distance sale contracts. The plaintiff is a consumer association having legal capacity which has been registered in the list of qualified entities under § 22a ABGB a. F. [Gesetz über Allgemeine Geschäftsbedingungen - Standard business terms act (obsolete)] (by now: § 4 UKlaG). One of the tasks under the association’s charter is the safeguarding and protection of consumer interests and consumer rights.
The defendant runs a mail order business. Its terms and conditions inter alia state: “The company bears the major part of the costs of careful packaging and reliable shipment of the goods. Your share of the shipping costs at the moment amounts to a flat fee of only EUR 4,95 per order.”
The defendant also charges those customers with the fee who unwind the contract due to their right of withdrawal and return. In cases in which the purchase price and the shipping fee have not been paid she invoices the customers with the fee, otherwise she deducts the fee from the purchase price before repayment. The plaintiff applied for a court order prohibiting the defendant to continue this business practice. The plaintiff succeeded in the first instance.
The Higher Regional Court Karlsruhe has dismissed the defendant’s appeal as unfounded. The Higher Regional Court followed Regional Court’s assessment that the provisions of sub-constitutional national law generally could be interpreted in the light of the Distance Sale Directive which had been transposed to national law before. This means that the courts have to follow an interpretation of national law which is the most consistent with Directive. In that decision, the courts have a wide scope of interpretation. National law is to be adjusted to wording and purpose of the directive as far as the scope of application admits. However, an interpretation in the light of the directive cannot cross the boundaries set by national methodology. Therefore, an interpretation contra legem (i. e.: against the clear wording of the law) is not admissible. Thus, the relevant provisions are generally to be interpreted in the way the Regional Court did, if it can be deducted from the directive that the consumer can also demand reimbursement of the sum paid for the shipment of the supplied goods to his place in the case of withdrawal from the contract, since the legislator expressly wanted to fully transpose the Directive 97/7/EC of 20 May 1997 on the protection of consumers in respect of distance contracts (Distance Sale Directive) into national law.

The Regional Court has correctly pointed out in its holdings – to which the senate expressly refers – that the directive 97/7/EC provides to compensate the consumer for fees for the original delivery of the goods, if he validly exerts his right of withdrawal from a distance sale contract and his right to return the delivered goods (§§ 355, 356 BGB). Contrary to the defendant’s opinion, the scope of application of Art. 6(1) and (2)(2) of the directive, providing the consumer to be kept free of charge, is not limited to the effect that it only applies to those costs which have directly been caused by the withdrawal. Even the official German wording of the directive by using the word “infolge” (= in consequence of) does not express such a causal relation in a way German legal systematics would. The Spanish version of the Directive completely refrains from indicating any causal relation. Thus, an interpretation limiting consumer protection cannot be based on this part of the directive.

Moreover would such an interpretation be opposed to purpose and meaning of this provision, since the 14th recital states that the costs borne by the consumer when exercising the right of withdrawal must be limited to the direct costs for returning the goods to economically safeguard the consumer’s right of withdrawal. If the consumer had - in addition to the costs for returning the goods –to bear the costs for the original shipment of the goods to his place, the unwinding of the purchase of less valuable goods would become economically pointless. From an economic perspective, the obligation to bear these costs would have an equal effect on the right of withdrawal as the penalties expressly mentioned (and prohibited) in Art. 6(1)(1) of the Distance Sales Directive. The supplier’s obligation to bear the original shipping costs is also consistent with the directive’s general protective purpose: It is intended to protect the customer from the specific risks arising from the fact that he or she is not able actually to see the product or ascertain the nature of the service provided before concluding the contract. These risks include the original shipping costs, since they would not accrue if the consumer was able to inspect the goods before the purchase.
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