Opinion of the Advocate General — ECLI:EU:C:2005:351
Date: 2005-06-02
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Approximation of laws – Consumer protection in the case of contracts negotiated away from business premises – Directive 85/577 – Conditions under which applicable – Contract concluded in a doorstep-selling situation – Intervention by a third party in the name of or on behalf of a trader – Awareness of trader that contract was concluded in that situation – Additional condition – Not permissible (Council Directive 85/577, Arts 1 and 2) 2. Approximation of laws – Consumer protection in the case of contracts negotiated away from business premises – Directive 85/577 – Loan agreement serving to finance the purchase of immovable property – Cancellation – Effects – Obligation to repay immediately with interest – Whether permissible (Council Directive 85/577, Arts 4 and 5(2)) 1. Articles 1 and 2 of Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises must be interpreted as meaning that, when a third party intervenes in the name of or on behalf of a trader in the negotiation or conclusion of a contract, the application of the Directive cannot be made subject to the condition that the trader was or should have been aware that the contract was concluded in a doorstep-selling situation as referred to in Article 1 of the Directive. There is no basis in the wording of the Directive for inferring the existence of such an additional condition and to accept such an additional condition is contrary to the objective of the Directive which is to protect the consumer from the element of surprise inherent in doorstep selling. (see paras 42-43, 45, operative part 1) 2. Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises does not preclude, in the case of a loan agreement serving to finance the purchase of immovable property: - a requirement that a consumer who has exercised his right to cancel under the Directive must pay back the loan proceeds to the lender, even though according to the scheme drawn up for the investment the loan serves solely to finance the purchase of the immovable property and is paid directly to the vendor thereof; - a requirement that the amount of the loan must be paid back immediately; - national legislation which provides for an obligation on the consumer, in the event of cancellation of a secured credit agreement, not only to repay the amounts received under the agreement but also to pay to the lender interest at the market rate. However, in a situation where, if the bank had complied with its obligation to inform the consumer of his right of cancellation, the consumer would have been able to avoid exposure to the risks inherent in investments, Article 4 of the Directive requires Member States to ensure that their legislation protects consumers who have been unable to avoid exposure to such risks, by adopting suitable measures to allow them to avoid bearing the consequences of the materialisation of those risks. (see para. 49, operative part 2)