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Case Details

Case Details
National ID C-489/07
Member State European Union
Common Name Pia Messner v Firma Stefan Krüger
Decision type Other
Decision date 03/09/2009
Court European Court of Justice
Subject
Plaintiff
Defendant
Keywords

Distance Selling Directive, Article 6, 1.

In Pia Messner v Firma Krüger the Court stated that a provision of national law which provides in general that, in the case of withdrawal by the consumer within the withdrawal period, the consumer is required to pay compensation for the value of the use of the consumer goods acquired under a distance contract is incompatible with Art. 6 (1) and Art. 6 (2) of the Distance Selling Directive (97/7/EC).

The Court further on pointed out that this does not consequently mean that the consumer is prevented from being required to pay compensation for the use of the goods in the case where he has made use of those goods in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment, on condition that the purpose of that directive and, in particular, the functionality and efficacy of the right of withdrawal are not adversely affected, this being a matter for the national court to determine.
In Pia Messner v Firma Stefan Krüger Case C-489/07 the consumer, Pia Messner, bought a second-hand laptop computer on the 2 December 2005 for 278 € on the internet from the defendant business. According to the business’s terms and conditions, in case of an effective withdrawal the buyer is required to pay compensation for the value of the intended use of the consumer goods. In August 2006 a defect of the screen occurred. After a notice of this defect on 4 August 2008 the defendant refused to rectify the defect free of charge. On 7 November 2006 the plaintiff revoked the contract and offered to return the laptop computer concurrently with the purchase price. The withdrawal still took place within the withdrawal period, which is regulated in § 312 d paragraph 2 in connection with § 312 c paragraph 2 BGB, since the notice of the right of withdrawal in respect of its content did not conform to the mentioned provisions. Since the defendant refused to accept the returned laptop computer and to refund the purchase price, the consumer brought its action, seeking reimbursement for the purchase price in the amount of 278 €.

The defendant stated that the plaintiff was obliged to pay compensation for the value of the use of the laptop during the past 8 months. For a comparable laptop computer, it argued, the average market rental price for three months would have been 118.80 €, with the result that the compensation for the period during which the plaintiff had been using the computer at issue came up to a sum of 316.80 €. This claim could be raised against the defendant’s claim for the purchase price. Thereafter the Amtsgericht Lahr, which was the court applied to in the first instance, abated the legal proceedings and submitted the question, whether the consumer’s obligation to compensation for the use of the good according to § 357 paragraph 1 sentence 1 in connection with § 346 paragraph 1 BGB is compatible with Art. 6 paragraph 2 in connection with paragraph 1 senetence 1 of the Distance Selling Directive 97/7, to the ECJ for a preliminary ruling according to Art. 234 EGV.
The ECJ ruled that in case of a withdrawal within the withdrawal period, a general requirement to pay compensation for the value of the use of consumer goods acquired under a distance contract is incompatible with the objectives of the Directive. However, -as concerning the conformity with the European Community Law- this does not prevent the consumer from being required to pay compensation for the use of the goods in the case where he has made use of those goods in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment.

The ECJ stated, that the consumer, if he merely was required to pay compensation because he had the possibility to use the good acquired at the distance contract while he was in possession of it, was only able to make use of his right of withdrawal if he paid the compensation for this value of the use. Such a consequence would clearly undermine the wording and purpose of Art. 6 paragraph 1 sentence 2 and paragraph of the Distance Selling Directive. According to these provisions the consumer should only bear the costs which result directly from the return of the good. This ensures that the right of withdrawal, regulated in the Distance Selling Directive, stays more than merely a formal right. If this right would be connected with negative costs, the consumer might be restrained from exercising this right. In particular, the consumer would be deprived of the respite which is granted to him by the Directive and which gives him the opportunity to examine, try out and use the purchased good without any pressure.

Further on the functionality and efficacy of the right of withdrawal would be adversely affected, if the consumer would be required to pay compensation, merely because he has examined and tested the good acquired at the distance contract.
Since the right of withdrawal purposes exactly the above mentioned, the availing of this opportunity may not lead to the consequence that the right can only be exercised in return of the payment of the compensation of the value of use.

Notwithstanding, even though the Distance Selling Directive has to protect the consumer in certain situations, it should not aim to concede rights for the consumer which exceed what is necessary for an expedient exercise of the right of withdrawal.
Therefore provisions of a Member State, which require the consumer’s payment for compensation for the use of goods in the case where he has made use of those goods in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment, are not incompatible with the Directive. The last sentence of the 14th recital of the Distance Selling Directive indicates that it is up to the Member State to determine further conditions and details for the exercise of the right of withdrawal. This competence is to be exercised in conformity with the purposes of the Directive and may not adversely affect the functionality and efficacy of the right of withdrawal. This would e.g. be the case, if the amount of the compensation for the value of use would be disproportioned to the purchase price for the good in question or, if the national provisions would impose on the consumer the burden of proof, that he did not use the good during the withdrawal period in a manner, that exceeds what is necessary for an expedient exercise of the right of withdrawal.
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