# C_2008209EN.01002301.xml

| 15.8.2008 | EN | Official Journal of the European Union | C 209/23 |
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15.8.2008

EN

Official Journal of the European Union

C 209/23

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Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 22 May 2008 — E. Friz GmbH v Carsten von der Heyden

(Case C-215/08)

(2008/C 209/33)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant: E. Friz GmbH

Applicant:

Defendant: Carsten von der Heyden

Defendant:

Questions referred

| 1. | Must the first sentence of Article 1(1) of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (1) be interpreted as meaning that it applies to a consumer's entry into a partnership, commercial partnership, association or cooperative if the principal purpose of joining is not to become a member of the partnership, association or cooperative but — as frequently applies in particular in relation to participation in a closed-end real estate fund — participation as a member is simply another means of capital investment or of obtaining services which are typically the object of reciprocal contracts? |
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1.

Must the first sentence of Article 1(1) of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (1) be interpreted as meaning that it applies to a consumer's entry into a partnership, commercial partnership, association or cooperative if the principal purpose of joining is not to become a member of the partnership, association or cooperative but — as frequently applies in particular in relation to participation in a closed-end real estate fund — participation as a member is simply another means of capital investment or of obtaining services which are typically the object of reciprocal contracts?

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| 2. | Must Article 5(2) of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises be interpreted as meaning that it precludes a legal effect under national (judge-made) law within the meaning of Article 7 of the directive which states that, where a consumer becomes a member in a doorstep-selling situation, the consequence is that, in the event that the membership is cancelled, the consumer cancelling the membership has a claim against the partnership, association or cooperative, calculated at the time that the cancellation takes effect, to his severance balance, that is, a sum corresponding to the value of his interest in the partnership, association or cooperative at the time of retirement from membership, with the (possible) effect that, as a result of the economic development of the partnership, association or cooperative, he either gets back less than the value of his capital contribution or even finds himself exposed to payment obligations which, because the severance balance is negative, go beyond the loss of the capital contribution paid? |
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2.

Must Article 5(2) of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises be interpreted as meaning that it precludes a legal effect under national (judge-made) law within the meaning of Article 7 of the directive which states that, where a consumer becomes a member in a doorstep-selling situation, the consequence is that, in the event that the membership is cancelled, the consumer cancelling the membership has a claim against the partnership, association or cooperative, calculated at the time that the cancellation takes effect, to his severance balance, that is, a sum corresponding to the value of his interest in the partnership, association or cooperative at the time of retirement from membership, with the (possible) effect that, as a result of the economic development of the partnership, association or cooperative, he either gets back less than the value of his capital contribution or even finds himself exposed to payment obligations which, because the severance balance is negative, go beyond the loss of the capital contribution paid?

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(1)  OJ L 372, 31.12.1985, p. 31.

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