The appeal was rejected. The court of appeal had primarily detailed that the injunction sought by the claimant was justified. By billing the costs of delivery to consumers the defendant contravened consumer protection provisions in the sense of article 2 (1) of the Law on injunctions. On an interpretation compatible with the Directive, articles 312d (1) sentence 2, 356 (1), 357 (1) sentence 1, and 346 of the German Civil Code give the consumer a right to restitution of paid delivery costs.
The delivery costs in the case of a withdrawal are not explicitly regulated by German law. In particular, the delivery costs are not part of the restitution obligation contained in article 346 (1) of the German Civil Code. A restitution is not possible either by way of the duty to compensate for expenses contained in article 347 (2) sentence 2 of the German Civil Code.
According to the Directive 97/7/CE the consumer must be freed from the costs of delivery in case of a withdrawal from a distance selling contract. The Directive specifies that the consumer must only bear the costs of the return of the items and all payments made must be restituted. Therefore, the professional delivering the goods must bear or restitute the delivery costs.
The court agrees with this judgment and the injunction can be granted. German law, however, does not provide a right to restitution of delivery costs. They are in principle not covered by the restitution obligation of article 346 either. To the question on interpretation of EU-law, whether “the provisions of article 6 (1) sentence 2 and (2) of the Directive 97/7/CE of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance selling contracts must be interpreted as meaning that they oppose a national provision that provides that the delivery costs may also be imposed on the consumer when he has withdrawn from the contract?”, the ECJ ruled that the Directive opposes a national provision that permits the professional to impose on the consumer the costs of delivery when the latter has withdrawn from the contract.
Accordingly, article 346 (1) of the German Civil Code in conjunction with articles 312d and 355 of the German Civil Code must be interpreted as meaning that when the consumer withdraws from a distance selling contract he has a right to have the delivery costs restituted. It is furthermore not permitted to impose on the consumer the costs of delivery through the general business conditions when the consumer exercises his right of withdrawal or return under articles 355 and 356 of the German Civil Code.