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Case Details

Case Details
National ID VIII ZR 149/08
Member State Germany
Common Name link
Decision type Other
Decision date 18/03/2009
Court BGH (Supreme court)
Subject
Plaintiff
Defendant
Keywords

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

The following preliminary question is referred to the European Court of Justice on the interpretation of Community law under article 234 EC: Is the provision of article 6 paragraph 3 dash 3 case 3 of the 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 to be interpreted as excluding a right of withdrawal in cases of distance contracts for the delivery of electricity and gas via the network?
On 20 January 2007 the claimant signed a standard-form contract provided by the defendant, an electricity and gas company, “Contract Agreement KombiSTA Electricity & Gas”, according to which, the defendant was to supply the claimant from 1 March 2007 for at least a year with gas and electricity. On 27 January the 2007 the claimant withdrew from the contract. The claimant sought a declaration that his withdrawal from the Contract Agreement KombiSTA Electricity & Gas was valid. His action was rejected in the lower courts.
The Federal Court of Justice has stayed the proceedings to refer to the ECJ, pursuant to article 234 EC, the preliminary question whether the provision of article 6 paragraph 3 dash 3 case 3 of the 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 were to be interpreted as excluding a right of withdrawal in cases of distance contracts for the delivery of electricity and gas via the network. The Contract Agreement KombiSTA Electricity & Gas is a distance contract for goods. Under German law (article 312d paragraph 1 sentence 1 of the German Civil Code) the claimant therefore has a right of withdrawal unless it is excluded by article 312d paragraph 4 number 1 case 3 of the German Civil Code. This is unclear in national law. In the opinion of the court, the wording of the provision indicates that for the delivery of electricity and gas via the network, both being intended for the immediate consumption by the client, there is no right of withdrawal because a return of the goods by the consumer is impossible. According to the travaux préparatoires, however, the provision was less intended to cover the case of the actual impossibility of a return, but rather the cases in which the withdrawal from the contract and the return of the goods would be unacceptable for the business – as is the case of the other exceptions listed in article 312d paragraph 4 of the German Civil Code. The withdrawal is not unacceptable for the business in the case of goods that, like electricity and gas, are intended for the immediate consumption by the customer and at the moment of withdrawal are already consumed. In these cases, article 346 paragraph 2 sentence 1 number 2 of the German Civil Code replaces the duty of the consumer to return the goods with a duty to provide compensation. Legal writers conclude from this that the consumption of the goods is without importance for the existence of a right of withdrawal. Thus, the right of withdrawal may be assumed also for cases of delivery of electricity and gas via the network. Since the legislature chose to implement with article 312d paragraph 4 number 1 case 3 of the German Civil Code the exclusion case of article 6 paragraph 3 dash 3 case 3 of the distance selling Directive verbatim, the interpretation of article 312d paragraph 4 number 1 case 3 of the German Civil Code depends, according to the court, on whether article 6 paragraph 3 dash 3 case 3 of the distance selling Directive covered with its exclusion of the right of withdrawal for the delivery of goods that are not suited to a return due to their nature, also electricity and gas contracts.
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