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Rechtssachenbeschreibung

Rechtssachenbeschreibung
Nationale Kennung G 164/2014
Mitgliedstaat Österreich
Gebräuchliche Bezeichnung G 164/2014
Art des Beschlusses Sonstiges
Beschlussdatum 09/10/2014
Gericht Verfassungsgerichtshof
Betreff
Kläger Unknown
Beklagter Unknown
Schlagworte right of withdrawal, service contract

Consumer Rights Directive, Chapter 3, Article 6, 1. Consumer Rights Directive, Chapter 3, Article 13, 1. Consumer Rights Directive, Chapter 3, Article 14, 2. Consumer Rights Directive, Chapter 3, Article 14, 4. Consumer Rights Directive, Chapter 3, Article 16, (a)

The right of withdrawal with full performance of the contract as stated in §§ 4 Sec 1, 14 Sec 1, 15 Sec 4, 16 Sec 2 and 18 Sec 1 Cif 1 of the Distance and Off-Premises Contracts Act (implementing Directive 2011/83) was not deemed to be unconstitutional.
The plaintiff runs a business as a painter, plasterer and dry constructor. He filed a request to abrogate certain sequences in the §§ 4 Sec 1, 14 Sec 1, 15 Sec 4, 16 Sec 2 and 18 Sec 1 Cif 1 of the Distance and Off-Premises Contracts Act implementing Directive 2011/83, claiming them to be unconstitutional pursuant to Article 140 Federal Constitution Act (Bundesverfassungsgesetz - B-VG).

As the cancellation of a contract is not possible for service contracts, the service provider loses his claim for payment in case the consumer exercises his withdrawal right. The plaintiff considers the sanctions regarding information obligations to violate the following rights guaranteed by the Constitution and the EU Charter of Fundamental Rights: freedom to practise a trade or occupation (Art 6 StGG, Art 16 CFR), integrity of property (Art 5 StGG, Art 1 1. ZPEMRK, Art 16 CFR) and equality before the law ( Art 7 B-VG, Art 20 CFR).
Is the right of withdrawal with full performance of the contract as stated in §§ 4 Sec 1, 14 Sec 1, 15 Sec 4, 16 Sec 2 and 18 Sec 1 Cif 1 of the Distance and Off-Premises Contracts Act (implementing Directive 2011/83) unconstitutional?
The Court stated that the plaintiff is affected directly and currently through the relevant provisions. However, for an abrogation application to be admissible, all legal provisions that form an indivisible unity in order to assess the eventual unconstitutionality have to be challenged. The line has to be drawn in a way that on the one hand the remaining part of the law does not receive a different content and on the other hand all provisions that form an indivisible entity with the challenged provision are challenged as well.

In this case, though, the plaintiff only challenged certain sequences of the law and parts of provisions, without which other provisions would receive a different meaning. According to the Court, the plaintiff would have had to challenge articles 14 (3), 7 (3) and 8 (8) of Directive 2011/83 (§§ 16 Sec 1 and 10 of the Distance and Off-Premises Contracts Act) as well, as they are directly connected to the challenged provisions (articles 14 (4) and 16 Directive 2011/83, § 16 Sec 2 and § 18 Distance and Off-Premises Contracts Act) and therefore form an indivisible entity. On the other hand, there is an inseparable unity between articles 14 (4) and 14 (2) Directive 2011/83 (§ 16 Sec 2 and § 15 Sec 4 in Austrian law), which is why the application is problematic in regard of the last sentence of article 14 (2) (implemented into Austrian law by § 15 Sec 4). Furthermore, he would have had to challenge the whole article 13 Directive 2011/83 (implemented into Austrian law by § 14) instead of only the first sentence, as the first sentence is indispensable for the meaning of article 13 Directive 2011/83 (implemented into Austrian law by § 14) as such and therefore forms an inseparable unity. Also, the challenged sequence in article 6 (1) Directive 2011/83 (implemented into Austrian law by § 4 Sec 1) is problematic, as the whole Sec 1 (not only the challenged sequence) is indispensable for the unity with the other challenged provisions.

Therefore, the scope of the application was considered too narrow.
Volltext: Volltext

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Member State Title Author
Österreich Ist das neue Verbraucherrecht noch zu retten? WENDEHORST, C.
The plaintiff's request was rejected.