Case law

  • Case Details
    • National ID: 2003-4054/7-350
    • Member State: Denmark
    • Common Name:link
    • Decision type: Other
    • Decision date: 01/06/2005
    • Court: Forbrugerklagenævnet (Others)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Distance Selling Directive, Article 6, 1.
  • Headnote
    The right of withdrawal had not ceased to exist because the supplier not in a sufficiently clear way had obtained the consumer’s consent to begin the performance of the service before the end of the withdrawal period, re § 18 (4) of the Act on Certain Consumer Contracts and art. 6 para 3, 3rd indent of Directive 97/7 on Distance Contracts.
  • Facts
    A consumer for a long time had a subscription contract with a telecommunication operator regarding provision of telephony and Internet access. When the consumer decided to move to another address he wished to change operator with respect to the Internet access. Thus, he informed the operator by telephone that he wished to move the telephony part of the subscription contract and cancel the Internet part.

    The operator confirmed on the same day the agreement, but noted that the change of address resulted in a new subscription agreement being established, which agreement was irrevocable for 6 month, unless the consumer made use of the 14 days right of withdrawal. In the order confirmation it was added that the consumer was not entitled to withdraw from the contract if the consumer had made use of the service by making telephone calls.

    The consumer disagreed that a new subscription contract – with a new 6 month irrevocability period – had been established and complained immediately to the operator. The operator maintained its position and informed the consumer that because the consumer had already made calls from the telephone the right of withdrawal had elapsed.
  • Legal issue
    The Board noted that because the contract between the consumer and the operator was concluded under an organised service-provision scheme run by the supplier, it was a distance contract comprised by the Act on Certain Consumer Contracts, including the provisions regarding right of withdrawal. Further, the Board found that the consumer’s complaint to the supplier should be considered as a notice regarding withdrawal.

    According to § 18(4) of the Act on Certain Consumer Contracts, re art. 6 para 3, 3rd indent of Directive 97/7 on Distance Contracts, the right of withdrawal regarding provision of services elapses if performance has begun, with the consumer’s consent, before the end of the withdrawal period.

    The Board did not find that the information in the operator’s order confirmation regarding the lapse of the right of withdrawal fulfilled the requirement that the supplier in a sufficiently clear way shall obtain the consumer’s consent to begin the performance of the service. Hence, the right of withdrawal had not elapsed and the consumer had rightfully withdrawn from the contract. Accordingly, the operator was obligated to repay what it had received from the consumer under the contract.
  • Decision

    Full text: Full text

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