# C_2010148EN.01000502.xml

| 5.6.2010 | EN | Official Journal of the European Union | C 148/5 |
| --- | --- | --- | --- |

5.6.2010

EN

Official Journal of the European Union

C 148/5

---

Judgment of the Court (First Chamber) of 15 April 2010 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — E. Friz GmbH v Carsten von der Heyden

(Case C-215/08) (1)

1

(Consumer protection - Contracts negotiated away from business premises - Scope of Directive 85/577/EEC - Entry into a closed-end real property fund established in the form of a partnership - Cancellation)

2010/C 148/07

Language of the case: German

Referring court

Referring court

Bundesgerichtshof

Parties to the main proceedings

Parties to the main proceedings

Applicant: E. Friz GmbH

Applicant:

Defendant: Carsten von der Heyden

Defendant:

Re:

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Articles 1(1) and 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 (OJ 1985 L 372, p. 31) — Scope — Consumer joining a closed-end real property fund in the form of a partnership whose essential purpose is the investment of capital — Legal effects of cancellation.

Operative part of the judgment

Operative part of the judgment

| 1. | Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises applies to a contract, concluded in circumstances such as those at issue in the main proceedings, concerning a consumer’s entry to a closed-end real property fund established in the form of a partnership when the principal purpose of joining is not to become a member of that partnership, but is a means of capital investment; |
| --- | --- |

1.

Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises applies to a contract, concluded in circumstances such as those at issue in the main proceedings, concerning a consumer’s entry to a closed-end real property fund established in the form of a partnership when the principal purpose of joining is not to become a member of that partnership, but is a means of capital investment;

| 2. | Article 5(2) of the Directive does not preclude, in circumstances such as those of the main proceedings, a national law according to which, in the event of cancellation of membership of a closed-end real property fund established in the form of a partnership, entered into following a doorstep transaction, the consumer has a claim against that partnership, to his severance balance, calculated on the basis of the value of his interest at the date of his retirement from membership of that fund, and may therefore get back less than the value of his capital contribution or have to participate in the losses of that fund. |
| --- | --- |

2.

Article 5(2) of the Directive does not preclude, in circumstances such as those of the main proceedings, a national law according to which, in the event of cancellation of membership of a closed-end real property fund established in the form of a partnership, entered into following a doorstep transaction, the consumer has a claim against that partnership, to his severance balance, calculated on the basis of the value of his interest at the date of his retirement from membership of that fund, and may therefore get back less than the value of his capital contribution or have to participate in the losses of that fund.

---

(1)  OJ C 209, 15.8.2008.

1

---