Opinion of the Advocate General — ECLI:EU:C:2009:98
Date: 2009-02-18
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 Approximation of laws – Protection of consumers in respect of distance contracts – Directive 97/7 (European Parliament and Council Directive 97/7, second sentence of Art. 6(1), and Art. 6(2) The provisions of the second sentence of Article 6(1) and Article 6(2) of Directive 97/7 on the protection of consumers in respect of distance contracts must be interpreted as precluding a provision of national law which provides in general that, in the case of withdrawal by a consumer within the withdrawal period, a seller may claim compensation for the value of the use of the consumer goods acquired under a distance contract. If the consumer were required to pay such compensation merely because he had the opportunity to use the goods while they were in his possession, he would be able to exercise his right of withdrawal only against payment of that compensation. Such an outcome would be clearly at variance with the wording and purpose of the second sentence of Article 6(1) and Article 6(2) of Directive 97/7 and would, in particular, deprive the consumer of the opportunity to make completely free and independent use of the period for reflection granted to him by that directive. Likewise, the efficiency and effectiveness of the right of withdrawal would be impaired if the consumer were obliged to pay compensation simply because he had examined and tested the goods. To the extent to which the right of withdrawal is intended precisely to give the consumer that opportunity, the fact of having made use of it cannot have the consequence that the consumer is able to exercise that right only if he pays compensation. However, those provisions do not prevent the consumer from being required to pay compensation for the use of the goods in the case where he has made use of those goods in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment, on condition that the purpose of that directive and, in particular, the efficiency and effectiveness and efficacy of the right of withdrawal are not adversely affected, this being a matter for the national court to determine. (see paras 23-24, 29, operative part)