Case law

  • Case Details
    • National ID: ECLI:NL:RBOBR:2016:2425
    • Member State: Netherlands
    • Common Name:link
    • Decision type: Court decision, first degree
    • Decision date: 13/05/2016
    • Court: District Court Oost-Brabant
    • Subject:
    • Plaintiff: VERENIGING CONSUMENTENBOND
    • Defendant: ESSENT RETAIL ENERGIE B.V.
    • Keywords: business premises, Distance Selling Directive, doorstep selling
  • Directive Articles
    Consumer Rights Directive, link Consumer Rights Directive, Recitals, (22) Consumer Rights Directive, Chapter 1, Article 2, (8) Consumer Rights Directive, Chapter 1, Article 2, (8), (b) Consumer Rights Directive, Chapter 1, Article 2, (8), (c) Consumer Rights Directive, Chapter 3, Article 6, 1. Consumer Rights Directive, Chapter 3, Article 9
  • Headnote
    1) A 'stand' inside a shop qualifies as business premises.
    2) A contract is negotiated away from business premises if that contract is concluded in a shop, but outside the 'stand' within that shop.
  • Facts
    Plaintiff is a consumers association and defendant an energy company. Essent enters into contracts with consumers via certain sales channels. Essent concluded contracts in Dutch shops MediaMarkt and Gamma at a small designated stand. The consumers would receive a gift voucher which they could spend in the store as a bonus with the contract. At the moment of issuing the contract the general terms and conditions were also provided, which stated that no term of withdrawal applied to the contract as the sale had taken place on premises. The association claims that the contracts fall under the scope of the definition 'sales off-premises' defined as in Directive 2011/83/EU and art. 6:230g (1)(f) DCC and advised consumers to terminate the contracts on the grounds of the extended period of withdrawal in the sense of art. 6:230o in conjunction with 6:230m (1) DCC. Defendant did not comply.
  • Legal issue
    The court considers the explanation of Directive 2011/83/EU which has led to the definition of 'on the premises' in art. 6:230o DCC. Which includes whatever form (such as shops, stalls or lorries) which serve as a permanent or usual place of business for the trader. The court states that the stand in this case probable complies with the definition from the Directive and therefore fall under the scope of art. 6:230g (1)(g) DCC. Meaning that plaintiff is not entering into any off-premises contracts.
    Not proven is whether the sale of the contract also happened outside of the mentioned stands. Therefore the consumers did not have a right to an period of withdrawal.
  • Decision

    1) Does a 'stand' inside a shop qualify as business premises?
    2) Can a contract that was negotiated away from the business premises be regarded as a contract that is concluded in a shop, but outside the 'stand' within that shop?

    URL: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBOBR:2016:2425

    Full text: Full text

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  • Result
    The court rejects the charges by the plaintiff.