Opinion of the Advocate General — ECLI:EU:C:2009:522
Date: 2009-09-08
Language of the case: German
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Approximation of laws – Protection of consumers in respect of contracts negotiated away from business premises – Directive No 85/577 (Council Directive No 85/577, Art. 1(1), second indent, and (2)) 2. Approximation of laws – Protection of consumers in respect of contracts negotiated away from business premises – Directive No 85/577 (Council Directive No 85/577, Art. 5(2)) 1. Directive No 85/577 to protect the consumer in respect of contracts negotiated away from business premises applies to a contract between a trader and a consumer entered into following an unsolicited doorstep transaction at the home of the consumer, concerning that consumer’s entry into 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. (see paras 28, 34, operative part 1) 2. Article 5(2) of Directive No 85/577 to protect the consumer in respect of contracts negotiated away from business premises does not preclude 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 an unsolicited doorstep transaction at the home of the consumer, that 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. While there is no doubt that the aim of the directive is to protect consumers, that does not imply that that protection is absolute. Thus, both the general structure of the directive and the wording of several of its provisions indicate that such protection is subject to certain limits. As regards the consequences of the exercise of the right of renunciation in particular, notification of the cancellation has the effect, both for the consumer and for the trader, of restoring the status quo ante. However, the fact remains that there is nothing in the directive to preclude the consumer, in certain specific cases, from having obligations to the trader and, depending on the circumstances, from having to bear certain consequences resulting from the exercise of his right of cancellation. (see paras 44-45, 50, operative part 2)