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Case Details

Case Details
National ID ECLI:NL:RBUTR:2012:BX6226
Lidstaat Nederland
Common Name link
Decision type Court decision, first degree
Decision date 29/08/2012
Gerecht Rechtbank Utrecht
Onderwerp
Eiser Unknown
Verweerder Unknown
Trefwoorden Distance Selling Directive, fees, judicial review

Distance Selling Directive, link

Assigning an usage fee is not in violation of the law in so far that it is not reasonable and fair.
Plaintiff bought a car from defendant. Plaintiff had a complaint about the fuel meter and the on-board computer. Plaintiff terminated the agreement. Defendant doesn't want to recover the purchase amount. Plaintiff brought the matter to the Disputes Committee on Vehicles. The Committee considers that there is enough reason to express the termination of the agreement required by plaintiff. However, in view of the nature of the defect, the Committee does not see a reason to set a very limited user fee as requested by the plaintiff, but considers that the operating fee mentioned by the defendant in this regard is reasonable.

This dispute is about the fact that plaintiff assumes that the Disputes Committee's ruling by determining a user fee of € 5,200 is unacceptable in terms of reasonableness and fairness. Plaintiff assumes that for that reason he is not bound by the verdict of the Disputes Committee.
Does a binding advice from the Dispute Committee lose its binding effect when asking for a compensation fee because the fee is in violation of the law on the grounds of reasonableness and fairness?
The court refers to the Messner-decision in which the ECJ, based on the interpretation of Directive 97/7/EC, decides the following:

"25. However, although Directive 97/7 is designed to protect the consumer in the particular situation of a distance contract, it is not intended to grant him rights going beyond what is necessary to allow him effectively to exercise his right of withdrawal.

26. Consequently, the purpose of Directive 97/7 and, in particular, the prohibition laid down in the second sentence of Article 6(1) and Article 6(2) thereof do not preclude, in principle, a legal provision of a Member State which requires a consumer to pay fair compensation in the case where he has made use of the goods acquired under a distance contract in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment."
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Plaintiff can not be followed in his claim that the Disputes Committee's judgment (that he owes a user compensation) is so much contrary to the law, that it is unacceptable in terms of reasonableness and fairness.