CELEX: 62008CC0215
Language: en
Date: 2009-09-08
Title: Opinion of Advocate General Trstenjak delivered on 8 September 2009.#E. Friz GmbH v Carsten von der Heyden.#Reference for a preliminary ruling: Bundesgerichtshof - Germany.#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.#Case C-215/08.

OPINION OF ADVOCATE GENERAL
      TRSTENJAK
      delivered on 8 September 2009 1(1)
      
      Case C‑215/08
      E. Friz GmbH
      v
      Carsten von der Heyden
      (Reference for a preliminary ruling from the Bundesgerichtshof (Germany))
      (Directive 85/577/EEC – Consumer protection in respect of contracts negotiated away from business premises – Scope – Entry into a closed-end real property fund established in the form of a civil-law partnership (societas) – Renunciation – Effect ex nunc)
      
      Table of contents
      
      I –  Introduction
      II –  Legal framework
      A – Community law
      B – National law
      III –  Facts, main proceedings and questions referred
      IV –  Procedure before the Court
      V –  Arguments of the parties
      A – Admissibility
      B – First question referred
      C – Second question referred
      VI –  Advocate General’s assessment
      A – Introduction
      B – Admissibility
      C – First question referred
      1. Two fundamental concepts
      a) Closed-end real property fund
      b) Civil-law partnership
      2. Does entry into a closed-end real property fund established in the form of a civil-law partnership fall within the scope
         of Directive 85/577?
      
      a) Conditions governing the existence of a contract under Directive 85/577
      b) Exceptions provided for in Article 3(2) of Directive 85/577
      i) Contracts relating to immovable property
      ii) Contracts for securities
      3. Scope of the German HWiG
      4. Proposed answer to the first question
      D – Second question referred
      1. Notice of right of renunciation?
      2. Analysis of the substance
      3. Proposed answer to the second question
      E – Conclusion
      VII –  Conclusion
      
      I –  Introduction
      1.        This case, which concerns the interpretation of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in
         respect of contracts negotiated away from business premises (2) (‘Directive 85/577’), raises two questions of law. It raises, first, the question of the application of Directive 85/577
         to entry into a closed-end real property fund established in the form of a civil-law partnership, and, secondly, the question
         whether the legal consequences of withdrawing from that fund carry effects ex tunc or ex nunc.
      
      2.        What is special about this case is the fact that the issues which it raises fall into two areas of law: consumer protection
         law and company law. In this context, in order to give a ruling, the Court will have to take account of the particular features
         of the partnership agreement on the basis of which the civil-law partnership is established and determine whether Directive
         85/577, which was drawn up to apply to synallagmatic contracts, likewise applies where a new partner joins the partnership,
         thus becoming a contracting party to the partnership agreement. At the same time, the characteristics of a civil-law partnership,
         which is based on the principle of equality between partners, will be significant when assessing the effects of withdrawal
         from the partnership since, if the other partners are themselves consumers within the meaning of Directive 85/577, all the
         consumers must be protected, not just the consumer who withdraws from the partnership. It will therefore be impossible in
         this case to follow blindly a literal interpretation of the provisions of that directive. Account will also have to be taken,
         inter alia, of its purpose, although this will involve a departure from the strictly literal meaning of its provisions.
      
      3.        In terms of its substance, this case has to do with the wider issue of the acquisition of holdings in old real property in
         Germany known as ‘Schrottimmobilien’ (junk property). (3) Investment in such property, which Germans opted for primarily on account of the resultant tax benefits, has often failed
         to deliver the expected results, and investors have therefore looked for ways of terminating those investments by relying
         inter alia on the Community directives concerning consumer protection. Thus, in Schulte (4) and Crailsheimer Volksbank, (5) the Court has already considered this issue in a similar context but in connection with a different point of law. In Schulte, it expressly held that the cancellation of the contract which the consumer had concluded away from the trader’s business
         premises must result in the restoration of the status quo ante. (6) In this case, it will therefore be necessary to establish whether this can likewise be applied without restriction to a consumer’s
         withdrawal from a closed-end real property fund established in the form of a civil-law partnership.
      
      II –  Legal framework
      A –    Community law
      4.        Article 1(1) of Directive 85/577 provides:
      
      ‘This Directive shall apply to contracts under which a trader supplies goods or services to a consumer and which are concluded:
      …
      –      during a visit by a trader:
      (i) to the consumer’s home or to that of another consumer;
      …
      where the visit does not take place at the express request of the consumer.’
      5.        Article 2 of Directive 85/577 provides:
      
      ‘For the purposes of this Directive: “consumer” means a natural person who, in transactions covered by this Directive, is
         acting for purposes which can be regarded as outside his trade or profession; “trader” means a natural or legal person who,
         for the transaction in question, acts in his commercial or professional capacity, and anyone acting in the name or on behalf
         of a trader.’
      
      6.        Article 3(2) of Directive 85/577 provides:
      
      ‘This Directive shall not apply to:
      (a)      contracts for the construction, sale and rental of immovable property or contracts concerning other rights relating to immovable
         property. Contracts for the supply of goods and for their incorporation in immovable property or contracts for repairing immovable
         property shall fall within the scope of this Directive;
      
      …’
      7.        Article 4 of Directive 85/577 provides:
      
      ‘In the case of transactions within the scope of Article 1, traders shall be required to give consumers written notice of
         their right of cancellation within the period laid down in Article 5, together with the name and address of a person against
         whom that right may be exercised. Such notice shall be dated and shall state particulars enabling the contract to be identified.
         It shall be given to the consumer:
      
      (a)      in the case of Article 1(1), at the time of conclusion of the contract;
      …
      Member States shall ensure that their national legislation lays down appropriate consumer protection measures in cases where
         the information referred to in this Article is not supplied.’
      
      8.        Article 5 of Directive 85/577 provides:
      
      ‘1.      The consumer shall have the right to renounce the effects of his undertaking by sending notice within a period of not less
         than [(7)] seven days from receipt by the consumer of the notice referred to in Article 4, in accordance with the procedure laid down
         by national law. It shall be sufficient if the notice is dispatched before the end of such period.
      
      2.      The giving of the notice shall have the effect of releasing the consumer from any obligations under the cancelled contract.’
      9.        Article 7 of Directive 85/577 provides:
      
      ‘If the consumer exercises his right of renunciation, the legal effects of such renunciation shall be governed by national
         laws, particularly regarding the reimbursement of payments for goods or services provided and the return of goods received.’
      
      10.      Article 8 of Directive 85/577 provides:
      
      ‘This Directive shall not prevent Member States from adopting or maintaining more favourable provisions to protect consumers
         in the field which it covers.’
      
      B –    National law
      11.      Directive 85/577 was transposed into German law by the Gesetz über den Widerruf von Haustürgeschäften und ähnlichen Geschäften
         (Law on the cancellation of doorstep transactions and analogous transactions) of 16 January 1986 (8) (the ‘HWiG’). That law was still in force at the time of the facts, but was repealed on 1 January 2002 by the Gesetz zur
         Modernisierung des Schuldrechts (Law on the modernisation of the law of obligations) of 26 November 2001. (9)
      
      12.      Paragraph 1(1) of the HWiG provides:
      
      ‘Where the customer was induced to make a declaration of intention to conclude a contract for a service for valuable consideration:
      1.      by oral negotiations at his place of work or in a private home,
      …
      that declaration of intention takes effect only if the customer does not give written notice revoking it within a period of
         one week.’
      
      13.      Paragraph 3(1) of the HWiG provides:
      
      ‘In the event of cancellation, each contracting party shall return to the other whatever it has received. Damage to or loss
         of the object or any other matter preventing the return of the object shall not preclude cancellation. If the customer is
         liable for the damage, loss or other matter preventing return, he shall pay the difference in value or the value of the object
         to the other contracting party.’
      
      III –  Facts, main proceedings and questions referred
      14.      On 23 July 1991, on the basis of negotiations which took place in his private home, Carsten von der Heyden entered a closed-end
         real property fund established in the form of a civil-law partnership. The object of this real property fund, which had 46
         partners, was the repair, modernisation and administration of a property situated at Bergstraße 9 in Berlin. The manager of
         that real property fund is the company E. Friz GmbH. It is unclear from the facts as set out in the order for reference whether
         the company E. Friz GmbH is itself also a partner in the real property fund.
      
      15.      On 6 August 2002, Mr von der Heyden renounced the effects of his undertaking, in accordance with the HWiG; (10) more specifically, he withdrew from the closed-end real property fund. In its capacity as manager of the fund, the company
         E. Friz GmbH sought from Mr von der Heyden payment of a sum of EUR 16 319 on account of the negative balance corresponding
         to the difference between the value of the amount paid by Mr von der Heyden at the time of his entry into the fund and the
         contribution to the losses carried by the real property fund at the time when he terminated the effects of his undertaking.
      
      16.      Although the court of first instance allowed that claim, the appellate court dismissed it on appeal by Mr von der Heyden.
         The appellate court took the view that exercise of the right of renunciation by a partner must not create for that partner
         an obligation towards the partnership to pay any amount whatsoever, since this would entail an infringement of the provisions
         of Directive 85/577, under which, in such circumstances, the consumer is released from any obligations under the cancelled
         contract.
      
      17.      The company E. Friz GmbH brought an appeal on a point of law against the judgment of the appellate court before the Bundesgerichtshof
         (Federal Court of Justice; ‘the referring court’). In the order for reference, the referring court states that, in accordance
         with national case-law, a partner who has joined a partnership following a doorstep transaction and who subsequently renounces
         the effects of his undertaking is not released from all his contractual obligations with effect ex tunc, rather such renunciation produces effects ex nunc. It follows that the partner does not have an automatic right to reimbursement of the contribution that he made to the partnership.
         Instead, the share due to him from the partnership’s profits or the share of the loss which he must bear is calculated on
         the day of his withdrawal.
      
      18.      It is therefore clear from the principles of that case-law in relation to a ‘defective partnership’ (fehlerhafte Gesellschaft) that exercise of the right of renunciation does not have the effect of restoring the status quo ante. Consequently, the referring court asks whether that case-law is consistent with the interpretation of Directive 85/577 established
         by the Court in Schulte, in which it held that exercise of the right of cancellation under Article 5(1) of Directive 85/577 has the effect, under
         paragraph 2 of that article, of releasing the consumer from any obligations under the cancelled contract, which includes the
         restoration of the status quo ante. (11)
      
      19.      In those circumstances, by order of 5 May 2008, the referring court decided to stay proceedings and refer to the Court the
         following two questions for a preliminary ruling: (12)
      
      ‘(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 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 property fund – participation as a member is simply another means of capital investment or of obtaining services
         which are typically the object of reciprocal contracts?
      
      (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 following a doorstep transaction,
         the consequence is that, if 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?’
      
      IV –  Procedure before the Court
      20.      The order for reference of 5 May 2008 was received at the Court on 22 May 2008. By letter of 10 March 2009, the Court asked
         the referring court to clarify whether, when he signed the contract to enter the real property fund, Mr von der Heyden had
         been given written notice of his right of cancellation, in accordance with Article 4 of Directive 85/577. By letter of 19
         March 2009, the referring court replied that, in the national proceedings, the appellate court had held that Mr von der Heyden
         had duly renounced the effects of his undertaking (13) and that neither this fact nor the fact that he had entered the real property fund following a doorstep transaction had been
         disputed by the parties. In its reply, the referring court also states that, in accordance with national procedural law, it
         was bound by that finding and that it was not permitted to review its accuracy.
      
      21.      During the written procedure, observations were submitted by Mr von der Heyden, the German Government and the Commission of
         the European Communities. At the hearing on 18 June 2009, those parties presented oral argument and answered questions put
         by the Court.
      
      V –  Arguments of the parties
      A –    Admissibility
      22.      With regard to admissibility, Mr von der Heyden and the German Government both take the view that the questions referred are inadmissible in so far as they relate to a commercial partnership, association
         or cooperative, since these are hypothetical in relation to the facts of this case. They point out that the two questions
         are admissible in so far as they are concerned with circumstances such as those in the main proceedings, that is to say, entry
         into a closed-end real property fund established in the form of a civil-law partnership.
      
      B –    First question referred
      23.      On the substance of the case, Mr von der Heyden takes the view that entry into a closed-end real property fund established in the form of a civil-law partnership falls within
         the scope of Directive 85/577, since the principal purpose of such entry is not to become a partner but to make a capital
         investment in a real property fund. In these circumstances, the membership contract may be regarded as a contract for valuable
         consideration since it relates to a capital investment, more specifically ‘the purchase’ of a holding in a closed-end real
         property fund. To this extent, the membership contract can therefore be treated as a synallagmatic contract.
      
      24.      Mr von der Heyden further claims that Directive 85/577 also applies to this case because the object of the civil-law partnership
         in question is the maintenance, modernisation and administration of immovable property, which constitute services within the
         meaning of that directive. Moreover, he is of the opinion that, even if the Court were to find that this case did not concern
         a supply of goods or a provision of services, the question referred would be justified because the provisions of German law
         by which that directive was transposed extend the scope of the directive in so far as they are applicable to all contracts
         relating to performance for valuable consideration. Article 8 of Directive 85/577 permits Member States to adopt or maintain
         more favourable provisions to protect consumers and provisions whose scope has been extended are clearly more favourable.
      
      25.      By contrast, the German Government takes the view that Directive 85/577 does not apply in this case. It states that, in accordance with Article 1(1) of that
         directive, the directive is to apply to contracts between traders and consumers, and that it therefore covers only bilateral
         or traditional synallagmatic contracts and not multilateral contracts such as that at issue in this case. In addition, it
         points out that the partners of a closed-end real property fund established in the form of a civil-law partnership are often
         consumers, but Directive 85/577 does not apply to contracts concluded between consumers. In the view of the German Government,
         the existing partners likewise do not supply goods or provide a service to a consumer who enters the fund, since the purpose
         of the partnership agreement is to achieve the aim of the partnership. Furthermore, in its opinion, a contract to enter a
         real property fund falls within the exception provided for in the first indent of Article 3(2)(a) of Directive 85/577 as it
         belongs to the category of ‘contracts concerning other rights relating to immovable property’ to which that directive does
         not apply. The purpose of the real property fund at issue here is the maintenance, modernisation and administration of immovable
         property. 
      
      26.      The Commission takes the view that the conclusion of a contract by which a consumer enters a real property fund constitutes the conclusion
         of a contract within the meaning of Article 1(1) of Directive 85/577 where, on the one hand, such entry creates a contractual
         relationship between the consumer-investor who enters the fund and the initiator of the real property fund and, on the other
         hand, either the partnership agreement or another contract concluded between the real property fund established in the form
         of a civil-law partnership and its initiator requires the latter to provide to the consumer-investor a service which falls
         within the framework of the initiator’s commercial or professional activity.
      
      27.      In this regard, the Commission points out that a contractual relationship must exist between the consumer-investor and the
         fund initiator. That relationship may be direct if the initiator is himself a partner in the fund, or indirect if there is
         a contractual relationship between the initiator and the fund in which the partner is a consumer-investor. In the view of
         the Commission, the fund initiator must also give an undertaking to the consumer to supply him with a service, for example
         to manage the immovable property which forms part of the fund’s assets. 
      
      28.      The Commission also takes the view that a contract to enter a closed-end real property fund does not fall within the exception
         provided for in the first sentence of Article 3(2)(a) of Directive 85/577, which excludes from the scope of that directive
         ‘contracts for the construction, sale and rental of immovable property or contracts concerning other rights relating to immovable
         property’. The Commission points out that that exception is concerned with the nature of the performance owed by the trader
         and, in this case, the performance does not consist in the construction, sale or rental of immovable property, but in the
         management of such property with a view to securing income for the partnership. 
      
      C –    Second question referred
      29.      Mr von der Heyden and the Commission propose that the Court should answer the second question in the affirmative. They claim that, in Schulte, (14) the Court ruled that, under Article 5(2) of Directive 85/577, the giving of notice of cancellation has the effect of releasing
         the consumer from any obligations under the cancelled contract, which includes the restoration of the status quo ante both for the consumer and for the trader. In their view, the legal effects of the renunciation are indeed to be governed
         by national laws in accordance with Article 7 of Directive 85/577, but the Member States may exercise their powers only in
         a manner consistent with Community law and, in particular, with the provisions of Directive 85/577, which must be interpreted
         in the light of the directive’s objectives and in a way which guarantees its effectiveness. They are therefore of the opinion
         that a consumer must have the possibility of renouncing the effects of his undertaking with ex tunc effect, and he must therefore be entitled to reimbursement of his initial contribution and released from all obligations
         arising from entry into a closed-end real property fund. 
      
      30.      The Commission goes on to say in this connection that the national legislature must find a solution which is consistent with
         Community law if such renunciation by the consumer gives rise to unfavourable consequences for the remaining partners or for
         the creditors of the civil-law partnership in question. In the view of the Commission, the national legislature could, for
         example, decide that the initiator of the partnership should take over that share of the partnership held by the partner renouncing
         the effects of his undertaking. 
      
      31.      With regard to the second question, the German Government states that it need be answered only in the alternative, taking into account the answer to the first question. It points
         out that, in accordance with Article 7 of Directive 85/577, the legal effects of renunciation are to be governed by national
         laws. The German Government further observes that, while Directive 85/577 does seek to protect consumers from the hasty conclusion
         of a contract, it does not seek to afford them general protection against investments which subsequently turn out to be economically
         disadvantageous. The Member States are free to determine whether, and to what extent, a consumer who has renounced the effects
         of his undertaking must shoulder any negative consequences of that renunciation. In the German Government’s view, German law
         therefore rightly provides that renunciation does not have retroactive effects dating back to entry into the real property
         fund (ex tunc), but effects only ex nunc.
      
      VI –  Advocate General’s assessment
      A –    Introduction
      32.      This case may be categorised as relating to the issue of unsuccessful investments in old real property in Germany, an issue
         previously raised in Schulte (15) and Crailsheimer Volksbank, (16) which were both concerned with the legal effects of the cancellation of loan agreements concluded away from business premises.
         In this case, unlike in Schulte and Crailsheimer Volksbank, the Court will have to address the legal consequences resulting from the cancellation of a partnership agreement, more specifically
         the withdrawal from a real property fund established in the form of a civil-law partnership and entered into by a consumer
         following a doorstep transaction. 
      
      33.      Real property funds in the form of investments in immovable property became very popular in Germany in the early 1980s; they
         grew rapidly at the beginning of the 1990s following German reunification. (17) They fell into decline after 1998, at which time many investors lost the money they had invested. (18) At the time of the real property funds’ decline, a number of investors withdrew from those funds, resulting in an increase
         in the number of court cases in which fund managers sought performance of the obligations entered into by investors. In cases
         in which consumers entered a fund following a doorstep transaction or elsewhere away from a trader’s business premises, German
         case-law permits the application of legislation to protect consumers in respect of contracts negotiated away from business
         premises, but allows a consumer to withdraw only with ex nunc effect, which means that the amount invested by the consumer in the fund is not necessarily returned to him in full.
      
      34.      The referring court has submitted to the Court two questions for a preliminary ruling. First, it asks whether the provisions
         of Directive 85/577 apply to the entry by a consumer into a closed-end real property fund established in the form of a civil-law
         partnership. Secondly, it asks whether the provisions of that directive preclude German case-law to the effect that such a
         consumer may withdraw from a closed-end real property fund with effect only ex nunc.
      
      B –    Admissibility
      35.      First, it is necessary to assess whether the two questions referred are inadmissible in so far as they concern membership
         of a commercial partnership, association or cooperative, as Mr von der Heyden and the German Government claim. In my opinion
         that view is to be endorsed.
      
      36.      It must be recalled that, in proceedings under Article 234 EC, which are based on a clear separation of functions between
         the national courts and the Court of Justice, it is solely for the national court before which the dispute has been brought,
         and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances
         of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions
         which it submits to the Court. Since both the questions submitted concern the interpretation of Community law, the Court is
         in principle bound to give a ruling. (19)
      
      37.      It is settled case-law that the Court may refuse to rule on a question referred for a preliminary ruling by a national court
         only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the facts of the
         main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal
         material necessary to give a useful answer to the questions submitted to it. (20)
      
      38.      It is clear from the facts set out in the order for reference that, in this case, a consumer entered a closed-end real property
         fund established in the form of a civil-law partnership. In my opinion, the two questions referred are therefore not admissible
         in so far as they concern membership of a commercial partnership, association or cooperative.
      
      39.      However, it must be pointed out that the first question also relates generally to membership of a partnership. It is true
         that a civil-law partnership is the main form of partnership, but the term partnership has a broader meaning since it covers
         civil-law partnerships and commercial partnerships. (21) Since the facts are concerned solely with membership of a civil-law partnership, the two questions referred must be restricted
         exclusively to membership of such a partnership.
      
      40.      On the basis of the foregoing considerations, I propose that the Court hold that the two questions referred are admissible
         only in so far as they concern the entry by a consumer into a closed-end real property fund established in the form of a civil-law
         partnership. 
      
      C –    First question referred
      41.      By the first question referred, the referring court asks, essentially, whether Article 1(1) of Directive 85/577 applies to
         the entry by a consumer into a closed-end real property fund established in the form of a civil-law partnership. I will begin
         by explaining the concepts of a closed-end real property fund and a civil-law partnership, before analysing whether entry
         into a closed-end real property fund established in the form of a civil-law partnership falls within the scope of Directive
         85/577.
      
      1.      Two fundamental concepts
      a)      Closed-end real property fund
      42.      A closed-end real property fund (geschlossener Immobilienfond, fonds immobilier fermé) is a form of capital investment in immovable property. (22) The purpose of a closed-end real property fund is normally to build or acquire one or more immovable properties and then,
         in principle, to rent them. (23) However, the primary focus is the investors’ acquisition of a holding, not their investment in the immovable property. (24) By this form of capital investment, investors are seeking either to generate a profit or to obtain tax relief. (25) Unlike an open-ended fund, a closed-end real property fund has a limited number of investors and a predetermined amount of
         investment; once sufficient capital has been raised, it is invested; consequently, it is no longer possible for new investors
         to participate in the fund. (26)
      
      43.      Under German law, a closed-end real property fund is normally established in the form of a civil-law partnership or a limited
         partnership. (27) Since, in this case, the closed-end real property fund was established in the form of a civil-law partnership, I shall set
         out below the main features of such a partnership that will have a bearing on the answer to the first question referred. 
      
      b)      Civil-law partnership
      44.      The civil-law partnership (societas) dates back to Roman law and is today a feature of the legal systems of many Member States. (28) In a civil-law partnership, the partners undertake, by means of a partnership agreement, to combine their efforts in pursuit
         of a common goal. The key components of a civil-law partnership are therefore: a partnership agreement concluded by at least
         two partners, a common goal, and partners’ contributions. I shall deal with each of those components in detail below. 
      
      45.      For a partnership to come into being, at least two or more partners must conclude a partnership agreement. (29) The partnership agreement is concluded intuitu personae, which means that the partners are bound personally and that, in principle, a partner cannot transfer his holding in the
         partnership to another person, unless the partnership agreement provides otherwise. (30) If a partner withdraws from the partnership or dies, in principle the partnership ceases to exist, unless the partnership
         agreement provides otherwise, (31) but the rules in this regard also vary from one Member State to another. (32) The grounds for winding up a partnership differ between the legal systems of the Member States; the two most common grounds
         are the attainment of the partnership’s objective or the expiry of the period for which the partnership was established. However,
         in certain legal systems, the withdrawal or death of a partner also constitutes a ground for winding up, as indicated above,
         as do other circumstances. (33)
      
      46.      By the partnership agreement, the partners undertake to combine their efforts with a view to achieving a common goal. There
         must therefore be an affectio societatis, an intention on the part of the partners to form a partnership in order to achieve a common goal. (34) The object must be lawful. (35) It may be multifaceted, but restrictions on the exercise of an economic activity apply. (36)
      
      47.      To achieve that common goal, the partners must make contributions determined by the partnership agreement; those contributions
         may take different forms, but they must have a financial value, for example in the form of cash, goods or services. (37) If a partner does not make his contribution, the other partners can force him to do so by judicial means (actio pro socio). (38)
      
      48.      It is also very important in this case to define the rights which partners hold in the partnership’s assets. It must be pointed
         out that this matter is regulated in different ways in the Member States. (39) German legal literature states that German property law provides for assets known as ‘Gesamthandsvermögen’, that is to say, partnership assets managed under contractual joint ownership. These assets have two main features: first,
         they are separate from the partners’ private assets; secondly, disposal of them is reserved to the organs of the partnership. (40) A particular form of ownership exists in relation to such partnership assets which is known as ‘Gesamthandseigentum’ (joint ownership). Since the German courts recognised civil-law partnerships as having legal capacity, (41) the question whether partners always have joint ownership (Gesamthandseigentum) of the partnership assets or whether the partnership alone owns them has been a matter of dispute in German legal writings
         and case-law. (42) This is clearly a question to which German legal writers and the German courts will have to provide an answer, and of which
         account will have to be taken in the event of the possible application of the exception provided for in Article 3(2)(a) of
         Directive 85/577. 
      
      2.      Does entry into a closed-end real property fund established in the form of a civil-law partnership fall within the scope of
         Directive 85/577?
      
      49.      In this case, the question in dispute is whether entry into a closed-end real property fund established in the form of a civil-law
         partnership falls within the scope of Directive 85/577. It must therefore be established whether Directive 85/577, which was
         drafted to apply to synallagmatic contracts (contractus bilaterales aequales), also applies to multilateral contracts, such as that at issue here.
      
      50.      First, it must be pointed out that the purpose of consumer protection under Directive 85/577 is to protect consumers from
         hasty decisions which they may make away from a trader’s business premises. Particular protection must be guaranteed for consumers
         in circumstances in which a contract is concluded at the initiative of the trader, the consumer being placed in a situation
         characterised by an element of surprise, since he is unable to compare the quality and price of the offer with those of other
         offers. (43) Since a consumer runs the risk of making a hasty decision as regards the conclusion of a contract, he must have a period
         of time for reflection after the contract has been concluded to consider the obligations arising from the contract and to
         decide whether or not to cancel that contract, in accordance with Article 5(1) of Directive 85/577, within a period of not
         less than seven days. (44) Entry into a closed-end real property fund is no exception in this regard; here too a consumer may make a hasty decision
         which he will regret subsequently. (45)
      
      51.      However, in this case, the Court will have to take account not only of whether the consumer warrants such protection, but
         above all whether entry into a closed-end real property fund established in the form of a civil-law partnership constitutes
         the conclusion of a contract within the meaning of Article 1(1) of Directive 85/577. Before I begin analysing the substance
         of the case, it is necessary to explain to which contract the question referred relates. 
      
      52.      In this case, Mr von der Heyden initially submitted a declaration of membership (Beitrittserklärung) of a closed-end real property fund established in the form of a civil-law partnership. When he made that declaration of
         membership, he was simply expressing his wish to enter the fund, more specifically to become a partner in it. As is clear
         from the declaration of membership, his membership took effect only when the manager of that partnership received the declaration
         in writing. At the same time, Mr von der Heyden concluded a partnership agreement with the other partners; more specifically,
         he became a partner at that time of the closed-end real property fund. In this case, the partnership agreement was therefore
         in the nature of a multilateral contract between partners. When Mr von der Heyden cancelled the partnership agreement, he
         ceased to be a partner in the real property fund. The first question referred is therefore concerned with whether Directive
         85/577 applies to the conclusion of the partnership agreement between Mr von der Heyden and the other partners.
      
      53.      For a contract to exist for the purpose of Article 1(1) of Directive 85/577, several conditions have to be met in relation
         to the two contracting parties, the subject-matter of the contract and the place of the contract’s conclusion. First, one
         contracting party must be a consumer; secondly, the other contracting party must be a trader; (46) thirdly, the contract must relate to the supply of goods or services to the consumer; and, fourthly, the contract must be
         concluded either during an excursion organised by the trader away from his business premises, or at the consumer’s home, the
         home of another consumer or the consumer’s place of work, where the visit does not take place at the express request of the
         consumer.
      
      54.      In this case, it is also necessary to establish whether the contract concluded is covered by one of the exceptions provided
         for in Article 3(2), in particular whether it falls within the exception provided for in Article 3(2)(a) of Directive 85/577,
         which excludes from the scope of that directive contracts for the construction, sale and rental of immovable property or contracts
         concerning other rights relating to immovable property, or whether it is covered by the exception provided for in Article
         3(2)(e) of that directive, which excludes from its scope contracts for securities. 
      
      a)      Conditions governing the existence of a contract under Directive 85/577
      55.      The first condition (one contracting party must be a consumer), the third condition (supply of goods or services) and the
         final condition (conclusion away from a trader’s business premises) governing the existence of a contract within the meaning
         of Article 1(1) of Directive 85/577 are, in my opinion, satisfied in this case. However, I take the view that the second condition
         (the second contracting party must be a trader) is not met.
      
      56.      Under Article 2 of Directive 85/577, ‘“consumer” means a natural person who, in transactions covered by this Directive, is
         acting for purposes which can be regarded as outside his trade or profession’. It is common ground in this case that Mr von
         der Heyden did not act in the context of his trade or profession, and he is therefore a consumer within the meaning of Directive
         85/577. (47)
      
      57.      It is also common ground that the contract to enter the real property fund was concluded away from the trader’s business premises
         since it was concluded at the consumer’s home. 
      
      58.      In addition, it is my view that entry into a closed-end real property fund is open to classification as a supply of goods.
         It is true that this case certainly does not concern a supply of goods within the meaning of traditional consumer contracts
         such as contracts of sale, for example. However, account must be taken of the fact that the contract is concerned with the
         acquisition of a holding in that fund, which may, in my view, be covered by the broad concept of supply of goods. Such a broad
         interpretation of that concept is also consistent with the Court’s case-law to date, in which it has adopted a broad interpretation
         of the concept of the supply of goods or services and, in so doing, has conferred a broad scope on Directive 85/577. 
      
      59.      In Dietzinger, (48) for example, the Court thus regarded a contract of guarantee as falling within the scope of Directive 85/577. In its reasoning,
         the Court stated that it should be noted that, apart from the exceptions listed in Article 3(2), the scope of the directive
         is not limited according to the nature of the goods or services to be supplied under a contract; the only requirement is that
         the goods or services must be intended for private consumption. (49) In Travel-Vac, (50) the Court held that Directive 85/577 applies to a time-share contract where the contract includes not only the right to use
         the property on a time-share basis but also the provision of separate services of a value higher than that of the right to
         use the property. (51) In Heininger, (52) the Court held that Directive 85/577 applies to loan agreements. It later applied that directive to loan agreements in Schulte, (53)Crailsheimer Volksbank, (54) and Hamilton. (55)
      
      60.      However, the second condition governing the existence of a contract within the meaning of Article 1(1) of Directive 85/577,
         that is to say, that the second contracting party must be a trader within the meaning of that directive, is in dispute in
         this case. 
      
      61.      Under Article 2 of Directive 85/577, ‘“trader” means a natural or legal person who, for the transaction in question, acts
         in his commercial or professional capacity, and anyone acting in the name or on behalf of a trader’. (56) In view of this definition, it is first of all necessary to determine whether in this case there is a trader within the meaning
         of Article 2 of Directive 85/577. 
      
      62.      It is clear from the declaration by which Mr von der Heyden entered the closed-end real property fund that that declaration
         was signed by Mr von der Heyden and the company Roland GmbH. (57) Beneath the signature of Mr von der Heyden appear the words ‘partner’s signature’ (Unterschrift Gesellschaftler); beneath the signature of the company Roland GmbH, the words ‘intermediary’s signature’ (Unterschrift Vertriebspartner). It is clear from this declaration of membership that Mr von der Heyden thereby joined the partnership ‘Grundstücksgesellschaft
         Bergstr. 9’ after the manager of that partnership had received written notification of his membership. In so doing, Mr von
         der Heyden therefore became a contracting party to the partnership agreement and a partner in the civil-law partnership. 
      
      63.      It is therefore necessary to establish whether, in the contractual relationship between the consumer who joins the partnership
         and the other partners in that partnership (partnership agreement), it is possible to identify a ‘trader’ within the meaning
         of Directive 85/577. 
      
      64.      There are in theory three possibilities in relation to this contractual relationship.
      
      65.      First possibility: all the partners in the civil-law partnership are consumers. In this case, Directive 85/577 definitely
         cannot apply to this contractual relationship, because the definition of ‘trader’ in Article 2 of Directive 85/577 requires
         that that person must be acting in his commercial or professional capacity, which cannot be said to be the case where the
         partners are consumers. In addition, if the other partners are themselves consumers, protection is afforded not just to one
         of them but to all the consumers who are partners in that partnership. Community law on consumer protection does not apply
         to relationships between consumers, and therefore not to C2C (consumer-to-consumer) relationships, but only to relationships
         between traders and consumers, that is to say, B2C (business-to-consumer) relationships. (58)
      
      66.      Second possibility: all the other partners in the civil-law partnership are traders within the meaning of Directive 85/577,
         with the exception of the partner who renounces the effects of his undertaking under that directive. If, in this case, all
         the other partners in the civil-law partnership were, for example, natural or legal persons whose professional activity consisted
         in the creation of closed-end real property funds and the sale of holdings to new partners, this argument might be relied
         on and, in those circumstances, Directive 85/577 would apply to this contractual relationship. However, that argument cannot
         be extended to this case because, as the referring court states in its order, in the case of a closed-end real property fund
         established in the form of a civil-law partnership, the other partners are, as a general rule, also consumers. (59)
      
      67.      Third possibility: some partners in the civil-law partnership are consumers, others are not. In such a case, it would be necessary
         to establish in respect of each of the individual partners falling within the latter category whether that partner could be
         classified as a trader within the meaning of Directive 85/577. This is a task for the national court, but the Court may in
         theory consider whether Directive 85/577 could be applied if the national court were to find that only certain partners may
         be classified as traders within the meaning of that directive. In this context, it is not possible, in my opinion, to rely
         on the argument that, since certain partners are traders within the meaning of Directive 85/577, the other partners are likewise
         assigned the status of trader within the meaning of that directive. Such a solution would be contrary to the requirement to
         protect all the partners in that partnership who are consumers. Similarly, the solution to the effect that only the partners
         having the status of traders within the meaning of Directive 85/577 should be financially liable if the partnership agreement
         is cancelled by a consumer is not readily acceptable from the point of view of company law. A partnership agreement is based
         on the principle of equality of the partners and the consumer in this case cancelled the agreement which had been concluded
         with all the partners and not only with those having the status of trader within the meaning of Directive 85/577. In addition,
         although it is ultimately for the national court to conduct such an assessment, the point must be made that, in this case,
         it is not clear from the description of the facts set out in the order for reference that the partners who are not consumers
         are traders within the meaning of Directive 85/577. I am therefore of the opinion that Directive 85/577 is not applicable
         in this case.
      
      68.      Next, it must be determined whether the initiator and founder of the closed-end real property fund may be regarded as a ‘trader’
         within the meaning of Directive 85/577. (60) The role of initiator and founder is of crucial importance to the fund, since it is that person who creates the fund and
         then endeavours to attract partners who will invest capital in it. As far as the initiator and founder is concerned, it can
         certainly be argued that the condition relating to activity in the context of commercial or professional activity is met,
         but the question remains whether that person may be regarded as a trader within the meaning of Directive 85/577. It is true
         that the initiator ‘sells holdings’ in the fund but he does not receive, on doing so, the full amount of the sum invested
         by the consumer. When a new partner joins, the initiator receives only a commission, (61) whereas the contribution invested by the partner is used to achieve the partners’ common goal. It is true that, on account
         of that commission, the initiator has an interest in the consumer’s entry into the fund, but he does not receive the sum invested.
         
      
      69.      It must be recognised that Directive 85/577 does not expressly require that a consumer contract should be a contract for valuable
         consideration. However, I take the view that it can be inferred from the scheme of that directive that, in the case of a contract
         for valuable consideration, the trader must receive the payment from the consumer. In accordance with Article 5(2) of Directive
         85/577, on the cancellation of the contract, the consumer is released from any obligations under the cancelled contract. This
         means that the trader must return to the consumer the amount that the consumer had paid to him. (62) Since, in this case, the initiator receives only a commission from the consumer, the consumer could at most seek reimbursement
         of that amount from him. 
      
      70.      I therefore take the view that the initiator and founder of the fund cannot be regarded as a trader within the meaning of
         Directive 85/577.
      
      71.      Nor, in this case, can the intermediary be defined as a ‘trader’ within the meaning of Directive 85/577. In addition to the
         contractual relationship between the partners, there is also in this case a relationship between the consumer joining the
         partnership and the intermediary. A consumer who enters a fund following a doorstep transaction is normally in a situation
         in which he is faced with an intermediary of that partnership who attempts to convince him to join the partnership. There
         is no doubt that the intermediary himself also has an interest in convincing the consumer to join the fund, since he receives
         a commission when new partners enter the closed-end real property fund. (63) Furthermore, the intermediary is the person who is in direct contact with the consumer and who, on the basis of the power
         of attorney conferred by the partnership, has an obligation to inform the consumer of his right of renunciation. 
      
      72.      In this case, the intermediary could be regarded as a ‘trader’ within the meaning of Article 2 of Directive 85/577 only if
         he ‘(were) acting in the name or on behalf of a trader’, and therefore only if the person in whose name or on whose behalf
         the intermediary acts could be classified as a ‘trader’. However, as is clear from points 60 to 70 of this Opinion, that condition
         is not satisfied in this case. Consequently, I take the view that the intermediary cannot be regarded as a ‘trader’ within
         the meaning of Directive 85/577. 
      
      b)      Exceptions provided for in Article 3(2) of Directive 85/577
      73.      If the Court were none the less to hold that this case does concern a contract within the meaning of Article 1(1) of Directive
         85/577, it is also necessary, finally, to answer the question whether the contract at issue falls within one of the exceptions
         provided for in Article 3(2) of Directive 85/577. In this connection, account will have to be taken of the general principle
         that, in accordance with the case-law of the Court, exceptions are to be interpreted strictly. (64)
      
      i)      Contracts relating to immovable property
      74.      It must first be established whether the contract at issue is covered by the exception provided for in Article 3(2)(a) of
         Directive 85/577, which provides inter alia that the directive does not apply to contracts concerning other rights relating
         to immovable property. (65)
      
      75.      On entering a closed-end real property fund, a person must make a contribution to that fund. (66) The subject-matter of the partnership agreement is therefore not directly the acquisition of any real or personal rights in immovable property, but the acquisition of a holding in the partnership
         or in the fund. It is therefore common ground that, by entering a closed-end real property fund, the consumer does not directly
         acquire any rights in immovable property. 
      
      76.      It is, however, necessary to consider whether, by acquiring a holding in the partnership, the consumer indirectly acquires rights in the immovable property owned by the partnership, and whether such indirect acquisition of rights is sufficient
         to render applicable the exception provided for in Article 3(2)(a) of Directive 85/577.
      
      77.      German legal literature states that, by joining a civil-law partnership, a consumer acquires joint ownership (Gesamthandseigentum) of that partnership’s assets. (67) Unlike co-ownership, this form of ownership is characterised by the fact that the partner does not hold a defined share of
         the assets and that the assets are managed jointly. (68) Since the German courts recognised that a civil-law partnership has legal capacity, the question whether the partnership’s
         assets remain in joint ownership (Gesamthandseigentum) or whether the partnership alone is the owner of those assets is a matter of dispute in German legal writings. (69)
      
      78.      The answer to the question whether, even after civil-law partnerships have been recognised as having legal capacity, the partnership’s
         assets are owned by all the partners (exercising joint ownership (Gesamthandseigentum)) or by the partnership alone is, in my view, essential to be able to answer the question whether the exception provided
         for in Article 3(2)(a) of Directive 85/577 applies to the entry by a consumer into a closed-end real property fund. (70) The answer to the question whether Community law applies will therefore depend, in this case, on the resolution of legal
         issues at national level over which the national court alone has jurisdiction. However, the Court may provide the national
         court in the preliminary ruling proceedings with all the guidance that it deems necessary to reply to the question referred
         for a preliminary ruling. (71)
      
      79.      In this connection, it is my opinion that the national court will have to take account of the following factors.
      
      80.      First, if it finds that, despite the partnership’s legal capacity, the partners exercise joint ownership (Gesamthandseigentum) of the partnership’s immovable property, this argues in favour of the possibility of applying the exception provided for
         in Article 3(2)(a) of Directive 85/577 in this case, irrespective of the fact that the consumer acquires rights in the immovable
         property only indirectly by acquiring a holding in the partnership. Gesamthandseigentum does have certain specific characteristics but it remains a form of ownership. I therefore see no reason why a different
         conclusion should be reached in this case simply because it concerns a particular form of ownership with specific characteristics.
         In this connection, the argument that the aim pursued by the consumer in acquiring a holding in the fund is to invest capital
         is not, in my view, convincing. It is common ground that the consumer’s aim is to make a capital investment and/or to obtain
         tax relief, but this in no way changes his status as a joint owner of that immovable property. 
      
      81.      Secondly, in its analysis, the national court will have to consider whether the consumer acquires any real or personal rights
         in the immovable property. In my view, the expression ‘other rights relating to immovable property’ contained in Article 3(2)(a)
         of Directive 85/577 must be interpreted as meaning that it is not limited exclusively to real rights, for two reasons. First,
         there is nothing in its wording to indicate that only real rights are excluded under this exception; on the contrary, rental
         is not a real right either and yet it is still excluded from the directive’s scope. (72) Secondly, if this exception were to be limited exclusively to real rights, personal rights relating to immovable property
         such as, for example, leasing rights or rights of pre-emption, would unjustifiably remain within its scope. It is true that,
         in the explanatory memorandum to the proposal for that article of the directive, the Commission, as well as referring to the
         sale of a piece of land or the transfer of ownership of a flat, which are already covered by the concept of contracts for
         the sale of immovable property in the version of the directive in force, mentioned only real rights, namely mortgages and
         easements, (73) but these are merely examples. It is also true that, in practice, ‘other rights relating to immovable property’ are indeed
         usually real rights. However, I see no reason why that exception should be limited, by its interpretation, to real rights
         alone. The national court will therefore have to establish in this case whether, by entering a closed-end real property fund
         established in the form of a civil-law partnership, the consumer acquires any personal or real rights in the immovable property. (74)
      
      ii)    Contracts for securities
      82.      Although none of the parties has raised the issue, it is also necessary to consider whether the entry by a consumer into a
         closed-end real property fund may be exempted on the basis of an analogous application of the exception provided for in Article
         3(2)(e), which excludes from the scope of the directive ‘contracts for securities’.
      
      83.      It is my view that this exception cannot be applied in this case.
      
      84.      It is true that Directive 85/577 does not contain any definition of the term ‘securities’. However, indications as to the
         definition of that term can be found in other Community provisions such as Council Directive 93/22/EEC on investment services
         in the securities field, (75) which classifies transferable securities in three groups, namely: (1) shares in companies and other securities equivalent
         to shares in companies; (2) bonds and other forms of securitised debt which are negotiable on the capital market; and (3)
         any other securities normally dealt in giving the right to acquire any such transferable securities by subscription or exchange
         or giving rise to a cash settlement excluding instruments of payment. (76) It is therefore clear that only securities which are dealt in on the market can be classified as securities. (77) Since holdings acquired in a closed-end real property fund are not dealt in on the market, they cannot be treated as securities.
         
      
      3.      Scope of the German HWiG
      85.      Finally, it is necessary to consider the argument advanced by Mr von der Heyden’s representative to the effect that the scope
         of the German HWiG is wider than that of Directive 85/577 and that, consequently, Germany has adopted more favourable provisions
         to protect consumers within the meaning of Article 8 of Directive 85/577.
      
      86.      In this regard, it should be pointed out that the German HWiG applies to the conclusion of all contracts relating to performance
         for valuable consideration. The scope of that law is therefore wider than that of Directive 85/577 in two respects. First,
         it does not require that the contract must relate to the supply of goods or services, and, secondly, it does not require that
         one of the contracting parties must be a trader. On these two points, the scope of that law is therefore more extensive than
         that of Directive 85/577, and it can therefore be understood why the German courts apply the HWiG to the entry by a consumer
         into a closed-end real property fund established in the form of a civil-law partnership. (78)
      
      87.      Contrary to the view taken by Mr von der Heyden’s representative, I do not think that this constitutes recourse to the possibility
         offered to Member States in Article 8 of Directive 85/577. That article allows Member States to adopt or maintain more favourable
         provisions to protect consumers in the field which [Directive 85/577] covers. (79) Where national legislation applies outside the scope of Directive 85/577, I take the view that Article 8 of Directive 85/577
         cannot be relied on. 
      
      88.      I would, however, also draw attention to the recent judgment in Moteurs Leroy Somer (80) in which, in relation to Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative
         provisions of the Member States concerning liability for defective products, (81) the Court held that that directive does not preclude domestic legislation from applying to a wider field than that of the
         directive. Directive 85/374 governs cases in which compensation is sought for damage to an item of property intended for private
         use. However, in accordance with the Court’s decision in Moteurs Leroy Somer, that directive does not preclude national legislation under which the person sustaining the damage may seek compensation
         for damage to an item of property intended for professional use. I take the view that a conclusion similar to that reached
         in Moteurs Leroy Somer may likewise be arrived at in this case. This means that the German legislature may provide that the HWiG, which transposes
         Directive 85/577 into national law, also applies to facts not governed by that directive, and therefore that it also applies
         to the entry by a consumer into a closed-end real property fund established in the form of a civil-law partnership.
      
      4.      Proposed answer to the first question
      89.      I propose that the Court’s answer to the first question referred should be that Article 1(1) of Directive 85/577 must be interpreted
         as meaning that it does not apply to the entry by a consumer into a closed-end real property fund established in the form
         of a civil-law partnership. 
      
      D –    Second question referred
      90.      The second question referred must be reworded in part on account of its partial inadmissibility (82) and because the answer to that question cannot be based on Article 7 (83) of Directive 85/577, on which the referring court relied in the question. (84)
      
      91.      The second question should therefore be understood as meaning that, by it, the referring court asks whether Article 5(2) of
         Directive 85/577 must be interpreted as meaning that it precludes a national judge-made rule to the effect that, by withdrawing
         from a closed-end real property fund established in the form of a civil-law partnership, the consumer holds against that fund
         a claim, calculated at the time of his withdrawal (ex nunc), to his severance balance, the result of which may be that the amount returned to him at the time of his withdrawal is less
         than that invested in the fund or that he is required to bear part of the losses carried by the fund. It must therefore be
         determined whether Directive 85/577 precludes the application of the principles established by German case-law in relation
         to ‘defective partnerships’ (fehlerhafte Gesellschaft) to withdrawal from a closed-end real property fund established in the form of a civil-law partnership. (85)
      
      92.      In the light of the proposed answer to the first question referred to the effect that Directive 85/577 does not apply in this
         case, there is no need, in principle, to answer the second question. (86) However, it is appropriate to provide in relation to the second question a brief analysis on which the Court may rely if,
         having regard to the first question, it gives a ruling other than that proposed in this Opinion. 
      
      1.      Notice of right of renunciation?
      93.      It should be pointed out first of all that it is not known in this case whether the consumer was given notice of his right
         of renunciation. The consumer’s right of renunciation is subject to a time-limit (87) and, under Directive 85/577, and more specifically the provisions transposing it into national law, once that period has
         expired, the consumer may renounce the effects of his undertaking only if he has not been given notice of that right. (88) As previously stated in point 20 of this Opinion, this question has been put to the referring court, but that court has not
         been able to answer it because it is bound by the findings of fact made by the lower court. In addition, the referring court
         has stated that it is common ground between the parties that the consumer had lawfully cancelled the contract in accordance
         with the HWiG which transposes Directive 85/577 into national law. That question was also put to the parties at the hearing,
         but their answers were inconsistent; Mr von der Heyden’s representative explained that he had no information on the matter,
         but the Commission took the view that this could simply be inferred implicitly from the fact that the consumer had, in this
         case, been able to renounce the effects of his undertaking. 
      
      94.      It must be observed that, in proceedings under Article 234 EC, which is based on a clear separation of functions between the
         national courts and the Court of Justice, any assessment of the facts in the case is a matter for the national court. However,
         in order to give the national court a useful answer, the Court may, in a spirit of cooperation with national courts, provide
         it with all the guidance that it deems necessary. (89) Consequently, in this case, the Court will have to proceed on the assumption that the consumer was not given notice of his
         right of renunciation, but it will be for the national court to establish the accuracy of that assumption within the scope
         of its jurisdiction.
      
      2.      Analysis of the substance
      95.      If, in this case, the Court’s answer to the first question referred were that Directive 85/577 applies in this case, the consumer
         would have to be ‘[released] from any obligations under the cancelled contract’, in accordance with Article 5(2) of that directive.
         This would mean that the full amount of the sum which he invested in the fund would have to be refunded to him. In this case,
         in which the fund is loss-making, the result of this would be that the other partners in the fund would have to bear the financial
         burden of reimbursing that amount to the consumer who has withdrawn from the fund. 
      
      96.      An explanation should first be given of the significance to this case of Article 7 of Directive 85/577, which provides that
         ‘[i]f the consumer exercises his right of renunciation, the legal effects of such renunciation shall be governed by national
         laws, particularly regarding the reimbursement of payments for goods or services provided and the return of goods received’.
         That article does not confer on the Member States a general power to alter at will the legal consequence provided for in Article
         5(2) of that directive, but authorises them only to determine the timing and manner of restitution of the obligations performed
         under the contract which the consumer has cancelled. (90) Consequently, that article is not sufficient on its own to support the proposition that the consumer’s withdrawal from the
         fund gives rise to effects ex tunc.
      
      97.      The interpretation of Article 5(2) of Directive 85/577 will therefore be decisive in this case. The wording of that article
         leaves no room for any doubt: the consumer must be released from any obligations under the cancelled contract. The case-law
         on the interpretation of that article is likewise clear: in Schulte, the Court held that the cancellation of the contract which the consumer had concluded away from business premises was to
         result in the restoration of the status quo ante. (91)
      
      98.      However, the solution to the effect that withdrawal from the fund by the consumer could give rise to effects ex tunc would be contrary to the purpose of that directive. Consequently, the answer to the second question will have to be based
         on a teleological interpretation of Article 5(2) of Directive 85/577, and the question answered to the effect that that article
         does not preclude a national judge-made rule which provides that, by withdrawing from a closed-end real property fund established
         in the form of a civil-law partnership, the consumer may assert against that fund a claim, calculated at the time of his withdrawal
         (ex nunc), to his severance balance, the result of which may be that the amount reimbursed to him at the time of his withdrawal is
         less than that which he invested in the fund, or that he is required to bear part of the losses carried by that fund. Several
         arguments can be put forward in support of this solution. 
      
      99.      The first and decisive argument in support of that assertion is that all the other partners in the closed-end real property
         fund established in the form of a civil-law partnership are, in principle, consumers. (92) Directive 85/577 grants consumers protection against vendors, but not against other consumers. If it were accepted in this
         case that a consumer may withdraw from a closed-end real property fund with effect ex tunc, that consumer would indeed be protected but the other consumers still in the fund would at the same time be totally deprived
         of protection. The only person who would be protected in those circumstances would be the first consumer to decide to withdraw
         from the fund, while the other consumers not only would not enjoy such protection, their position would be made worse by the
         protection granted to the consumer who had withdrawn. (93) It is not therefore possible, in my opinion, to accept the proposition that a consumer withdraws from a closed-end real property
         fund with effect ex tunc. 
      
      100. Secondly, account should be taken of the fact that Directive 85/577 seeks to protect consumers from the hasty conclusion of
         a contract away from business premises, not from the risks inherent in capital investments. Like other forms of capital investment,
         investments in closed-end real property funds involve risks; the risk may bring the investor a profit or a loss. If the consumer
         withdraws from the fund at the very time when that fund generates a profit, he is entitled to have his share of the profit
         distributed to him and, conversely, if the fund makes a loss, the consumer must, when withdrawing from the fund, bear a share
         of the loss sustained by the fund. The consumer must assume the risk of the capital investment himself, in the same way that
         he alone benefits from any profits made by the partnership. Allowing a consumer who has not been given notice of his right
         of renunciation to withdraw from the fund with effects ex tunc would create an absurd situation, inasmuch as he would be guaranteed a more favourable financial position than a consumer
         who has been given due notice of his right of renunciation and whose right of renunciation is, as a result, subject to a time-limit.
      
      101. Thirdly, the fact that the consumer withdrew from a closed-end real property fund after 11 years is not insignificant to the
         analysis of this case. As previously stated in point 94 of this Opinion, I am assuming here that this was possible because
         the consumer had not been given notice of his right of renunciation. However, it must be borne in mind in this regard that
         the justification for consumer protection is to some extent different in a situation where the consumer is able to renounce
         the effects of his undertaking within a period of at least seven days immediately after the contract was concluded as compared
         with a situation where he may renounce those effects even after some time has passed since the contract was concluded because
         that period is extended on the ground that he was not given notice of his right of renunciation.
      
      102. The purpose of the opportunity given to a consumer to renounce the effects of his undertaking immediately after the contract
         has been concluded is protection against hasty decision-making. (94) The consumer must therefore be allowed, within a relatively short space of time after the contract has been concluded, to
         consider his obligations under that contract and to decide whether or not to cancel it. The subsequent opportunity afforded
         to the consumer of renouncing the effects of his undertaking because he has not been given notice of his right of renunciation
         is based on two partly different arguments. On the one hand, its purpose is to ensure that the consumer can exercise his rights
         effectively; on the other hand, by allowing the consumer to renounce the effects of his undertaking without time restriction
         when he has not been given notice of his right of renunciation traders would in some way be obliged to give consumers notice
         of that right in future. (95) That extension of the renunciation period might to some extent be said to be a form of penalty against a trader who has failed
         to give the consumer notice of his right of renunciation. The penalty-like nature of the extended period allowed for renouncing
         the effects of an undertaking would in this case have an unfair adverse effect on the other consumers who are partners in
         the real property fund in question. 
      
      3.      Proposed answer to the second question 
      103. I therefore propose that the Court’s answer to the second question, if it finds in relation to the first question that Directive
         85/577 applies to the entry by a consumer into a closed-end real property fund established in the form of a civil-law partnership,
         should be that Article 5(2) of Directive 85/577 must be interpreted as meaning that it does not preclude a national judge-made
         rule which provides that, when withdrawing from a closed-end real property fund established in the form of a civil-law partnership,
         a consumer may assert against that fund a claim, calculated at the time of his withdrawal (ex nunc), to his severance balance, the result of which may be that the amount reimbursed to him at the time of his withdrawal is
         less than that which he invested in the fund, or that he is required to bear part of the losses carried by that fund. 
      
      E –    Conclusion
      104. It must be acknowledged that the proposed answer to the second question referred, set out in the foregoing point, creates
         an exception to Article 5(2) of Directive 85/577. In conclusion, I must therefore return to the answer to the first question
         and point out that the most appropriate view is that Directive 85/577 does not apply to the entry by a consumer into a closed-end
         real property fund established in the form of a civil-law partnership. 
      
      VII –  Conclusion
      105. In the light of all the foregoing considerations, I propose that the Court’s answer to the two questions referred for a preliminary
         ruling by the Bundesgerichtshof should be as follows:
      
      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 must be interpreted as meaning that it does not apply to the entry by a consumer into a closed-end
         real property fund established in the form of a civil-law partnership. 
      
      1 –	Original language: Slovene.
      
      2 –	OJ 1985 L 372, p. 31. 
      
      3 –	This term is used, for example, by Rösler, H., ‘Die europarechtlichen Vorgaben bei der Bewältigung der “Schrottimmobilien”-Problematik:
         Entscheidungen des Europäischen Gerichtshofs vom 25. Oktober 2005’, Zeitschrift für europäisches Privatrecht, No 4/2006, p. 869; Käseberg, T. and Richter, K., ‘Haustürwiderrufsrichtlinie und “Schrottimmobilien”: die Urteile in Sachen
         Schulte und Crailsheimer Volksbank’, Europäische Zeitschrift für Wirtschaftsrecht, No 2/2006, p. 46; von Weschpfennig, A., ‘Der Widerruf der Beteiligung an einem Immobilienfonds – Anwendbarkeit der Grundsätze
         des fehlerhaften Gesellschaftsbeitritts?’, Zeitschrift für Bank- und Kapitalmarktrecht, No 3/2009, p. 99. 
      
      4 –	Case C-350/03 [2005] ECR I-9215. 
      
      5 –	Case C-229/04 [2005] ECR I-9273. 
      
      6 –	Cited above in footnote 4, paragraphs 88 and 92.
      
      7 –      This footnote concerns only the Slovene version of this Opinion.
      
      8 –	BGBl. 1986 I, p. 122.
      
      9 –	BGBl. 2001 I, p. 3138.
      
      10 –	The most logical approach, it is true, would be to refer to the cancellation of the declaration of membership (Widerruf der Beitrittserklärung) made by Mr von der Heyden, since the German HWiG is based on the idea that the consumer can cancel the declaration of intention
         which he has made in order to conclude the contract. Paragraph 1(1) of the HWiG thus provides that the declaration of intention
         is to take effect only if the customer does not give written notice cancelling it within a period of one week (‘Willenserklärung
         … wird erst wirksam, wenn der Kunde sie nicht binnen einer Frist von einer Woche schriftlich widerruft’). However, to avoid
         terminological and conceptual differences in the text of this Opinion as a whole, I will use the expression ‘cancellation
         of the contract’ (Widerruf des Vertrags), since Directive 85/577 is built on the idea that a consumer has the right to renounce the effects of his undertaking. Since
         the Court is required to interpret Community law, the use of that expression seems to me to be more appropriate. For general
         information regarding a consumer’s right of cancellation (Widerrufsrecht), see, for example, Larenz, K. and Wolf, M., Allgemeiner Teil des Bürgerlichen Gesetzbuchs, 9th edition, Beck, Munich, 2004, p. 714, paragraphs 2 and 3.
      
      11 –	Cited above in footnote 4, paragraphs 88 and 92.
      
      12 –	This footnote concerns only the Slovene version of this Opinion.
      
      13 –	Here too it would be more accurate to say that Mr von der Heyden duly cancelled his declaration of membership of the real
         property fund; in this regard, see footnote 10 of this Opinion.
      
      14 –	Cited above in footnote 4, paragraphs 88 and 92. 
      
      15 –	Cited above in footnote 4. 
      
      16 –	Cited above in footnote 5. 
      
      17 –	Holmer, A., Die Gesellschaft bürgerlichen Rechts als Grundlage geschlossener Immobilienfonds, Lexxion, Berlin, 2006, p. 6; Heckschen, H., Beck’sches Notarhandbuch, 4th edition, Beck, Munich, 2006, Chapter ‘X. Sonderformen des Immobilienerwerbs’, paragraph 1.
      
      18 –	In this regard, see Holmer, A., cited above in footnote 17, p. 6. See also Mootz, C., Risikoanalyse geschlossener Immobilienfonds – Grundlagen, Anforderungen, Praxisbeispiele, VDM Verlag Dr. Müller, Saarbrücken, 2007, pp. 1 and 2. On the reasons behind the real property fund crisis, see Wagner,
         K.-R., ‘Ausstieg aus fremdfinanzierten geschlossenen Immobilienfonds per HWiG, VerbrKrG, Anlageberatungshaftung und Prospekthaftung’,
         Neue Zeitschrift für Gesellschaftsrecht, No 4/2000, p. 169 et seq. 
      
      19 –	See to this effect Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38; Case C-419/04 Conseil général de la Vienne [2006] ECR I-5645, paragraph 19; Case C-119/05 Lucchini [2007] ECR I-6199, paragraph 43; Case C-221/07 Zablocka-Weyhermüller [2008] ECR I-9029, paragraph 20; and Case C-544/07 Rüffler [2009] ECR I-3389, paragraph 36. 
      
      20 –	See to this effect PreussenElektra, paragraph 39, Conseil général de la Vienne, paragraph 20, Lucchini, paragraph 44, Zablocka-Weyhermüller, paragraph 20, and Rüffler, paragraph 38, all cited above in footnote 19.
      
      21 –	See, for example, Schmidt, K., Gesellschaftsrecht, 4th edition, Carl Heymanns Verlag, Cologne, Berlin, Bonn, Munich, 2002, p. 46, who classifies as partnerships not only civil-law
         partnerships but also, for example, general partnerships, limited partnerships and holding companies. See also Ulmer, P. and
         Schäfer, C., in Münchener Kommentar zum Bürgerlichen Gesetzbuch, 5th edition, Beck, Munich, 2009, introductory commentary on Paragraphs 705 to 853, paragraphs 1 and 2. 
      
      22 –	It should be added that, in addition to closed-end real property funds, there are also open-ended real property funds.
         The latter are normally established in the form of a company limited by shares or a private limited liability company and
         the number of investors in such funds is unlimited. See, for example, Holmer, A., cited above in footnote 17, p. 5. 
      
      23 –	Holmer, A., cited above in footnote 17, p. 3. Kniffka, R. and Koeble, W., Kompendium des Baurechts, 3rd edition, Beck, Munich, 2008, Part 11, paragraph 43, state that a closed-end real property fund may have as its object,
         for example, investment in hotels, music halls, shopping centres, retirement homes and other similar forms of immovable property.
         
      
      24 –	Holmer, A., cited above in footnote 17, p. 4. 
      
      25 –	Ibid., pp. 3 and 5. 
      
      26 –	In this respect, a closed-end real property fund is different from an open-ended real property fund, in which the participation
         of new investors is always possible. See Bartlsperger, S., Boutonnet, B., Loipfinger, S., Nickl, H., Nickl, L. and Richter,
         U., Geschlossene Immobilienfonds, Schäffer-Poeschel Verlag, Stuttgart, 2007, pp. 56 and 57. 
      
      27 –	Ibid., pp. 96 to 98. See also Holmer, A., cited above in footnote 17, p. 4, who states that, in addition to establishment
         in the form of a civil-law partnership or a limited partnership, establishment in the form of a general partnership, for example,
         is also possible, although much rarer. 
      
      28 –	See, for example, in Austrian law, Paragraphs 1175 to 1216 of the General Civil Code (Allgemeines bürgerliches Gesetzbuch),
         under the heading ‘Von dem Vertrage über eine Gemeinschaft der Güter’; in French law, Articles 1832 to 1844 of the Civil Code
         (code civil) on partnerships in general, but on civil-law partnerships (sociéte civile) see Articles 1845 to 1870; in Italian law, Articles 2247 to 2250 of the Civil Code (Codice civile) on partnerships (società) in general, but on civil-law partnerships (società semplice) see Articles 2251 to 2290; in German law, Paragraphs 705 to 740 of the Civil Code (Bürgerliches Gesetzbuch) under the heading
         ‘Gesellschaft’; in Netherlands law, Articles 1655 to 1688 of the Civil Code (Burgerlijk Wetboek) under the heading ‘Van maatschap’;
         in Polish law, Articles 850 to 875 of the Law of 23 April 1964, Civil Code (Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny)
         under the heading ‘Spolka’; in Slovenian law, Articles 990 to 1002 of the Code of Obligations (Obligacijskega zakonik) under the heading ‘Družbena pogodba’;
         in Spanish law, Articles 1.665 to 1.708 of the Civil Code (Código civil) under the heading ‘Sociedad’.
      
      29 –	With regard to the number of partners, see, for example, in relation to Austrian law, Paragraph 1175 of the Allgemeines
         bürgerliches Gesetzbuch (‘zwei oder mehrere Personen’); in relation to French law, Article 1832 of the code civil (‘deux ou
         plusieurs personnes’); in relation to Italian law, Article 2247 of the Codice civile (‘due o più persone’); in relation to
         German law, Ulmer P., and Schäfer, C., cited above in footnote 21, commentary on Paragraph 705, paragraph 60; in relation
         to Slovenian law, Article 990 of the Obligacijskega zakonik; in relation to Spanish law, Article 1665 of the Código civil
         (‘dos o más personas’). 
      
      30 –	See, in relation to German law, for example, Ulmer, P. and Schäfer, C., cited above in footnote 21, introductory commentary
         on Paragraphs 705 to 853, paragraph 7; in relation to Slovenian law, see Zabel, B., in Juhart, M. and Plavšak, N. (eds), Obligacijski zakonik s komentarjem (posebni del), Volume 4, GV založba, Ljubljana, 2004, introductory commentary of the chapter on partnership agreements, p. 932; in relation
         to Spanish law, see Moreno Gil, Ó., ‘Código civil y jurisprudencia concordada’, Boletín Oficial del Estado, Madrid, 2006, commentary on Article 1700, paragraph 5.791. In relation to French law, see Cozian, M., Viandier, A. and Deboissy,
         F., Droit des sociétés, 21st edition, LexisNexis Litec, Paris, 2008, p. 530 et seq., paragraph 1192 et seq. In legal literature, see also Trstenjak,
         V., Pravne osebe, GV založba, Ljubljana, 2003, p. 200. 
      
      31 –	See, with regard to German law, for example, Ulmer, P. and Schäfer, C., cited above in footnote 21, commentary on Paragraph 736,
         paragraph 8; with regard to Slovenian law, see Zabel, B., cited above in footnote 30, commentary on Article 1000, p. 984 et
         seq.; with regard to Spanish law, see Moreno Gil, Ó., cited above in footnote 30, commentary on Article 1700, paragraph 5.791.
         See also Trstenjak, V., cited above in footnote 30, p. 204.
      
      32 –	See, with regard to Austrian law, for example, Grillberger, K., in Rummel, P., Kommentar zum Allgemeines bürgerliches Gesetzbuch, Manz, Vienna, 1992, commentary on Paragraph 1211, pp. 70 and 71, paragraph 2, which states that the view taken in most Austrian
         legal writings is that the withdrawal of a partner results in the winding-up of the partnership, unlike the death of a partner,
         unless the partnership comprises only two partners (commentary on Paragraph 1207, pp. 62 and 63, paragraphs 3 and 5); in French
         law, shares in partnerships are transferable, but here too the death of a partner does not lead to the partnership’s being
         wound up, unless so agreed between the partners; see Cozian, M. et al., cited above in footnote 30, p. 530, paragraph 1192,
         and p. 536, paragraph 1208. 
      
      33 –	With regard to the grounds for winding up a partnership under Austrian law, see Paragraph 1205 of the Allgemeines bürgerliches
         Gesetzbuch (for example, achievement of the object of the partnership or expiry of the agreement); in relation to French law,
         for example, Article 1846-1 (no manager for more than one year) or the second paragraph of Article 1870 (death of a partner
         if so agreed) of the code civil; with regard to Italian law, Article 2272 of the Codice civile (for example, expiry of the
         agreement, achievement of the object of the partnership or unlawful nature of that object, consent of all the partners); in
         relation to German law, for example, Paragraph 726 (achievement of the object of the partnership or the impossibility of achieving
         it), Paragraph 727 (death of a partner) or Paragraph 728 (bankruptcy of the partnership or of a partner) of the Bürgerliches
         Gesetzbuch; in relation to Slovenian law, Article 1000 of the Obligacijskega zakoni (for example, expiry of the agreement,
         achievement of the object of the partnership, decision of the partners, death or withdrawal of a partner); in relation to
         Spanish law, Article 1700 of the Código civil (for example, expiry of the agreement, achievement of the object of the partnership,
         death of a partner).
      
      34 –	See, with regard to French law, Cozian, M. et al., cited above in footnote 30, p. 66, paragraphs 134 and 135; with regard
         to German law, Schmidt, K., cited above in footnote 21, p. 1733 et seq.; with regard to Spanish law, Moreno Gil, Ó., cited
         above in footnote 30, paragraph 5.720.
      
      35 –	See, with regard to Austrian law, for example, Grillberger, K., cited above in footnote 32, commentary on Paragraph 1175,
         p. 11, paragraph 19; with regard to French law, Article 1833 of the code civil; with regard to German law, Ulmer, P. and Schäfer,
         C., cited above in footnote 21, introductory commentary on Paragraphs 705 to 853, paragraph 6; with regard to Slovenian law,
         Article 990 of the Obligacijskega zakonik; with regard to Spanish law, Article 1666 of the Código civil. 
      
      36 –	See, for example, with regard to German law, Ulmer, P. and Schäfer, C., cited above in footnote 21, commentary on Paragraph 705,
         paragraph 144; with regard to French law, Cozian, M. et al., cited above in footnote 30, p. 521, paragraph 1174; with regard
         to Slovenian law, Zabel, B., cited above in footnote 30, commentary on Article 990, p. 944.
      
      37 –	See to this effect, with regard to Austrian law, Paragraph 1175 of the Allgemeines bürgerliches Gesetzbuch; with regard
         to French law, Article 1832 of the code civil); with regard to Italian law, Article 2247 of the Codice civile; with regard
         to German law, Paragraph 706 of the Bürgerliches Gesetzbuch; with regard to Slovenian law, Article 991 of the Obligacijskega
         zakonik; with regard to Spanish law, Article 1665 of the Código civil. 
      
      38 –	See, for example, with regard to Austrian law, Grillberger, K., cited above in footnote 32, commentary on Paragraph 1175,
         p. 17, paragraph 28; with regard to German law, Schmidt, K., cited above in footnote 21, p. 1749; with regard to Slovenian
         law, Zabel, B., cited above in footnote 30, commentary on Article 993, p. 961.
      
      39 –	In Austrian legal writings, for example, there is no consensus on whether the assets are in co-ownership (Miteigentum) or joint ownership (Gesamthandseigentum); Grillberger, K., cited above in footnote 32, commentary on Paragraph 1183, p. 33, paragraph 4, draws attention to this
         difference: he takes the view that the partners are co-owners of the partnership’s assets. In Slovenian law, the partners
         are co-owners of the partnership’s assets; see Zabel, B., cited above in footnote 30, introductory commentary on the chapter
         on partnership agreements, p. 926. Spanish law refers to a community of assets (comunidad de bienes) in which the partners own the assets in undivided co-ownership; Moreno Gil, Ó., cited above in footnote 30, comments on
         Articles 392 and 1669, paragraphs 1.245 and 5.732. In French law, a registered civil-law partnership is a legal person; as
         such, that person is the sole owner of the partnership’s assets; see, for example, Cozian, M. et al., cited above in footnote 30,
         p. 120, paragraph 244.
      
      40 –	Ulmer, P. and Schäfer, C., cited above in footnote 21, commentary on Article 718, paragraph 5. 
      
      41 –	Judgment of the Bundesgerichtshof of 29 January 2001, Case II ZR 331/00. In this judgment, the Bundesgerichtshof held that
         a civil-law partnership has legal capacity if it assumes rights and obligations of its own in legal relations; as such, it
         also has capacity to sue and be sued in civil proceedings. Schmidt, K., cited above in footnote 21, pp. 205 and 206, regards
         this decision as a cornerstone in the development of the law governing persons recognised by law. For a detailed commentary
         on that decision, see Schmidt, K., ‘Die BGB-Außengesellschaft: rechts- und parteifähig – Besprechung des Grundlagenurteils
         II ZR 331/00 vom 29.1.2001’, Neue Juristische Wochenschrift, No 14/2001, p. 993 et seq.
      
      42 –	This point is raised by Ulmer, P. and Schäfer, C., cited above in footnote 21, commentary on Paragraph 781, paragraph 2,
         who take the view that, despite the recognition of legal capacity, the partners retain joint ownership (Gesamthandseigentum) of the assets. Kießling, E., ‘Das Gesamthandsprinzip bei Personalgesellschaften’, in Häuser, F., Festschrift für Walther Hadding zum 70. Geburtstag am 8. Mai 2004, de Gruyter Recht, Berlin, 2004, p. 484 et seq., and Schmidt, K., cited above in footnote 21, p. 1772, for example, take
         a different view.
      
      43 –	See to this effect the fourth recital in the preamble to Directive 85/577. In legal literature, see, for example, Habersack,
         M., ‘The Doorstep Selling Directive and Mortgage Loan Contracts’, European Business Law Review, No 6/2000, p. 394; Martín Briceño, M. del R., La Directiva 85/577, de 20 de diciembre, referente a la protección de los consumidores en el caso de contratos negociados
            fuera de los establecimientos comerciales, La armonización legislativa de la Unión Europea, Dykinson, Madrid, 1999, p. 162. See also Crailsheimer Volksbank, cited above in footnote 5, paragraph 43, in which the Court stated that the objective of Directive 85/577 is to protect
         the consumer from the element of surprise inherent in doorstep selling. 
      
      44 –	See, for example, Habersack, M., cited above in footnote 43, p. 394; Manes, P., ‘Il diritto di pentimento nei contratti
         dei consumatori dalla legislazione francese alla normativa italiana in attuazione della direttiva 85/577’, Contratto e impresa. Europa, No 2/1996, p. 696; Mankowski, P., ‘Die gemeinschaftsrechtliche Kontrolle von Erlöschenstatbeständen für verbraucherschützende
         Widerrufsrechte’, Juristenzeitung, No 23/2008, p. 1143.
      
      45 –	See also, in this regard, Armbrüster, C., Gesellschaftsrecht und Verbraucherschutz – zum Widerruf von Fondsbeteiligungen: Vortrag, gehalten vor der Juristischen Gesellschaft
            zu Berlin am 29. September 2004, de Gruyter Recht, Berlin, 2005, pp. 13 and 15.
      
      46 –	This footnote relates only to the Slovene version of this Opinion. 
      
      47 –	It must be added that, in legal literature, there are indeed writers who take the view that a capital investor is not a
         consumer because he does not ‘consume’ anything. In German law, such a view is taken, for example, by Wagner, K.-R., cited
         above in footnote 18, p. 171. With regard to French law, see to this effect, for example, Calais-Auloy, J. and Steinmetz,
         F., Droit de la consommation, Dalloz, Paris, 2000, p 13, paragraph 14; see also Sievers, J., Verbraucherschutz gegen unlautere Vertragsbedingungen im französischen Recht. Vom Code civil zum “Code de la consommation” – die Entstehung eines Sonderprivatrechts für Verbraucher, Lang, Frankfurt, 1993, p. 82. However, it must be pointed out that this cannot apply as far as Directive 85/577 is concerned,
         since that directive requires only that the consumer must not be acting for a purpose falling within his trade or profession;
         nor does that directive expressly require that the contract should relate to consumer goods. 
      
      48 –	Case C-45/96 [1998] ECR I-1199. For legal commentary on this judgment, see, for example, Bydlinski, P. and Klauninger,
         J., ‘Zur Anwendbarkeit der Richtlinie 85/577/EWG vom 20. Dezember 1985 betreffend den Verbraucherschutz im Falle von außerhalb
         von Geschäftsräumen geschlossenen Verträgen auf Bürgschaftsverpflichtungen von Verbrauchern’, Zeitschrift für europäisches Privatrecht, No 4/1998, p. 994; Bamforth, N., ‘The Limits of European Union Consumer Contract Law’, European Law Review, No 4/1999, p. 410; Lorenz, S., ‘Richtlinienkonforme Auslegung, Mindestharmonisierung und der “Krieg der Senate”‘, Neue juristische Wochenschrift, No 40/1998, p. 2937. 
      
      49 –	In Dietzinger, cited above in footnote 48, paragraph 18, the Court also stated that the grant of a credit facility is indeed the provision
         of a service within the meaning of that directive and that the contract of guarantee was merely ancillary to the loan agreement,
         of which in practice it is usually a precondition. 
      
      50 –	Case C-423/97 [1999] ECR I-2195. For legal commentary on the judgment, see, for example, Hofstötter, M., ‘Time-sharing
         als Haustürgeschäft’, European Law Reporter, No 5/1999, p. 221; Bourgoignie, T., ‘Multipropriété et vente en dehors des établissements commerciaux: un arrêt important
         de la Cour de justice des Communautés européennes du 22 avril 1999’, Revue européenne de droit de la consommation, 1999, p. 147; Munar Bernat, P.A., ‘Sobre la aplicabilidad de la directiva 85/577/CE, de contratos negociados fuera de los
         establecimientos comerciales, a un contrato de multipropiedad (Comentario a la sentencia del Tribunal de Justicia de las Comunidades
         Europeas, de 22 de abril de 1999)’, Derecho privado y Constitución, No 13/1999, p. 235.
      
      51 –	It should be added that, in Travel-Vac, the question had also been raised as to whether the time-share contract fell within the exception laid down in Article 3(2)(a)
         of the directive. The Court held that the contract in issue in that case did not fall within that exception because it also
         covered additional services, such as the maintenance of the building and the management and administration of the time-share
         scheme, which were of a value higher than that of the right to use the property. See Travel-Vac, cited above in footnote 50, paragraph 10.
      
      52 –	Case C-481/99 [2001] ECR I‑9945. For legal commentary on the judgment, see, for example, Bernardeau, L., ‘Le droit de rétractation
         du consommateur: un pas de plus vers une doctrine d’ensemble’, La Semaine juridique - édition générale, No 40/2002, p. 1719. 
      
      53 –	Cited above in footnote 4. 
      
      54 –	Cited above in footnote 5. 
      
      55 –	Case C-412/06 [2008] ECR I-2383. 
      
      56 –	It should be pointed out that, in its Green Paper on the review of the Community acquis in matters of consumer protection (COM(2006) 744 final), p. 16, owing to the differences in the definitions of the terms
         ‘seller/trader/offeror’ in the Community directives in force in relation to consumer protection, the Commission declares itself
         to be in favour of standardising that definition. Accordingly, Article 2 of the proposal for a directive of the European Parliament
         and of the Council on consumer rights (COM(2008) 614 final) provides that ‘“trader” means any natural or legal person who,
         in contracts covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone
         acting in the name of or on behalf of a trader’.
      
      57 –	It is clear from the documents before the Court that, at the time when Mr von der Heyden entered the closed-end real property
         fund, the company Roland GmbH was the manager of that fund. The company E. Friz GmbH later replaced it as manager.
      
      58 –	Thus, in its Green Paper on the review of the Community acquis (COM(2006) 744 final), p. 16, the Commission expressly states that a consumer does not enjoy protection under Community law
         if the other party is a private individual. In the context of Directive 2005/29/EC of the European Parliament and of the Council
         of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (OJ 2005 L 149, p. 22),
         see point 64 of my Opinion of 3 September 2009 in Case C‑304/08 Plus Warenhandelsgesellschaft (judgment pending before the Court).
      
      59 –	See paragraph 20 of the order for reference. In legal literature, see, for example, Armbrüster, C., ‘Kapitalanleger als
         Verbraucher? Zur Reichweite des europäischen Verbraucherschutzrechts’, Zeitschrift für Wirtschaftsrecht, No 9/2006, p. 408. See also to this effect von Weschpfennig, A., cited above in footnote 3, p. 100. 
      
      60 –	In this case, it is not clear from the order for reference who was the initiator and founder of the fund, or whether that
         person was also a partner in the fund; at the hearing, the parties did not clarify this point. 
      
      61 –	Known as an ‘agio’; see Bartlsperger, S. et al., cited above in footnote 26, p. 282. 
      
      62 –	It must be added that the proposal for a Directive of the European Parliament and of the Council on consumer rights (COM(2008)
         614 final) which, in the future, might replace certain directives on consumer protection, including Directive 85/577, and
         will fully harmonise certain areas of consumer protection, expressly provides in Article 16(1) that ‘the trader shall reimburse
         any payment received from the consumer within 30 days from the day on which he receives the communication of withdrawal’.
         A similar rule also appears in the Draft Common Frame of Reference (DCFR) produced by a group of experts, Article II.-5:105
         of which provides inter alia that ‘[a]ny payment made by the withdrawing party must be returned without undue delay, and in
         any case not later than 30 days after the withdrawal becomes effective’. For the wording of the DCFR, see Von Bar, C. et al.
         (ed.), Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR), Interim Outline Edition, prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group), Sellier, European
         Law Publishers, Munich, 2008.
      
      63 –	See Bartlsperger, S. et al., cited above in footnote 26, p. 125, who points out that the commission is one of the advantages
         granted to the intermediary. 
      
      64 –	See, for example, Case C-203/99 Veedfald [2001] ECR I-3569, paragraph 15, and Heininger, cited above in footnote 52, paragraph 31.
      
      65 –	The justification for this exception lies in the fact that, in the case of immovable property contracts, the element of
         surprise on the part of the consumer is reduced because contracts of this kind normally entail a number of formalities such
         as legalisation by a notary; see, in this regard, points 55 and 56 of the Opinion of Advocate General Léger in Schulte, cited above in footnote 4. In addition, the DCFR produced by the group of experts also contains a similar exception which,
         in the chapter on the right to cancel contracts concluded away from business premises, provides in Article II.‑5:201(2)(c)
         that the right of cancellation does not apply to ‘a contract for the construction and sale of immovable property or relating
         to other immovable property rights, except for rental’. See Von Bar, C. et al., cited above in footnote 62.
      
      66 –	See to this effect Holmer, A., cited above in footnote 17, p. 4, who states that the partner cannot be regarded as an investor
         (Bauherr) in either legal or economic terms.
      
      67 –	See point 48 of this Opinion. Similarly, with regard to the joint ownership (Gesamthandseigentum) exercised by investors in a closed-end real property fund, see Schöner, H. and Stöber, K., Grundbuchrecht, 14th edition, Beck, Munich, 2008, Part 4, paragraph 3235b. Kniffka, R. and Koeble, W., cited above in footnote 23, Part
         11, paragraph 42, state that, because a closed-end real property fund is subject to this form of ownership, the connection
         with the immovable property is more direct than in the case of an open-ended real property fund. 
      
      68 –	See, for example, Schmidt, K., cited above in footnote 21, p. 1754; Ulmer, P. and Schäfer, C., cited above in footnote 21,
         commentary on Paragraph 718, paragraph 5. 
      
      69 –	Ulmer, P. and Schäfer, C., cited above in footnote 21, commentary on Paragraph 718, paragraph 2, take the view that the
         assets remain in joint ownership despite the fact that the partnership has legal capacity. Kießling, E., cited above in footnote
         42, p. 484 et seq., and Schmidt, K., cited above in footnote 21, p. 1772, take a different view. As does Habermeier, S., in J. von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Volume 2, commentary on Paragraph 718, paragraph 1. 
      
      70 –	By way of comparison, it should be pointed out that, in France, where civil-law partnerships have legal capacity, the cour
         d’appel de Pau (Court of Appeal, Pau), in a judgment of 13 May 2002 in the case of SA Union des banques suisses (UBS), held
         that that exception did not apply to the acquisition of a holding in a partnership whose assets are in the form of immovable
         property. 
      
      71 –	See to this effect, for example, Case C-49/07 MOTOE [2008] ECR I-4863, paragraph 30; Case C-414/07 Magoora [2008] ECR I-10981, paragraph 33; and Case C-545/07 Apis-Hristovich [2009] ECR I-1627, paragraph 32.
      
      72 –	See also Micklitz, H.-W., ‘Haustürgeschäfte’, in Reich, N. and Micklitz, H.-W., Europäisches Verbraucherrecht, 4th edition, Nomos, Baden-Baden, 2003, p. 553. It should be added that Article 20(1)(a) of the proposal for a directive
         of the European Parliament and of the Council on consumer rights (COM(2008) 614 final) which, in the future, might replace
         certain directives on consumer protection, including Directive 85/577, does not exclude rental from the scope of that directive.
         That article states that the articles on the provision of information to consumers and their right of renunciation do not
         apply ‘[to contracts for] the sale of immovable property or relating to other immovable property rights, except for rental …’ (my emphasis). The DCFR produced by the group of experts also contains a similar exception; see, in this regard, footnote
         65 to this Opinion. 
      
      73 –	See the explanatory memorandum to the proposal for a Council directive to protect the consumer in respect of contracts
         which have been negotiated away from business premises (COM(76) 544 final), commentary on Article 2 of that proposal. In legal
         writings, such examples are also cited by Dunn, E., ‘EEC Developments – Directive protecting the Consumer on the Conclusion
         of Contracts and Unilateral Engagements made away from a Trader’s Business Premises’, Irish Law Times, No 2/1989, p. 311. It should be added that the original proposal for that exception (Article 2(d) of that proposal) excluded
         from the scope of that directive ‘contracts relating to immovable property or any rights thereto’; see COM(76) 544 final (wording
         of Article 2 of that proposal). 
      
      74 –	If real rights exist, the national court will have to take account of whether, for example, all the partners are entered
         in the land register or whether only the civil-law partnership is so registered. If all the partners are entered in the land
         register, it would be difficult to argue that they have not acquired any rights in the immovable property; conversely, it
         would be difficult to prove the existence of real rights in immovable property within the meaning of Directive 85/577 if it
         is the civil-law partnership which is entered in the land register. In this regard, it should be mentioned that, in its order
         of 4 December 2008, Case V ZB 74/08, the Bundesgerichtshof held that a civil-law partnership can be entered in the land register
         under the name given to it by the partners in the partnership agreement; however, if the partnership agreement does not give
         the name of the civil-law partnership, the partnership is registered under the designation ‘Gesellschaft bürgerlichen Rechts
         bestehend aus …’ (civil-law partnership consisting of …), the names of the partners being given thereafter. It should be added
         that, at the hearing, when asked who was entered in the land register in this case, Mr von der Heyden’s representative stated
         that he had no information on this matter.
      
      75 –	Directive of 10 May 1993 (OJ 1993 L 141, p. 27). In legal writings, see Micklitz, H.-W., Richtlinie 85/577/EWG des Rates
         vom 20. Dezember 1985 betreffend den Verbraucherschutz im Falle von außerhalb von Geschäftsräumen geschlossenen Verträgen
         (Haustürwiderrufsrichtlinie), in Grabitz, E. and Hilf, M., Das Recht der Europäischen Union, Volume 4, Beck, Munich, 2008, commentary on Articles 1 to 3 of the directive, paragraph 50. 
      
      76 –	See also the definitions contained in Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations
         and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ 1985
         L 375, p. 3), as amended by Directive 2001/108/EC of the European Parliament and of the Council of 21 January 2002, which,
         in Article 1(8), defines transferable securities as ‘shares in companies and other securities equivalent to shares in companies
         (“shares”), bonds and other forms of securitised debt (“debt securities”), [and] any other negotiable securities which carry
         the right to acquire any such transferable securities by subscription or exchange …’.
      
      77 –	In this regard, see also Feron, B., ‘La Directive 93/22 concernant les services d’investissement dans le domaine des valeurs
         mobilières et son impact sur la loi du 4 décembre 1990’, Revue pratique des sociétés, No 3/1994, p. 215. 
      
      78 –	It should be added that the scope of the German HWiG is narrower than Directive 85/577 in so far as it requires that the
         contract should be for valuable consideration, which the directive does not expressly do. However, since this case concerns
         a contract for valuable consideration, I will not deal with this issue in my line of argument. On this issue, see also Armbrüster,
         C., cited above in footnote 59, p. 409. 
      
      79 –	This means, for example, that the national legislation requires the trader not only to give consumers written notice of
         their right of renunciation but also, for example, to provide consumers with the form for them to complete when renouncing
         the effects of their undertaking, or [to inform them] that it is sufficient for the purpose of renunciation that consumers
         give verbal notice to the trader, not written notice. 
      
      80 –	Case C-285/08 [2009] ECR I-4733.
      
      81 –	OJ 1985 L 210, p. 29. 
      
      82 –	With regard to the partial inadmissibility of the questions referred, see point 35 et seq. of this Opinion.
      
      83 –	With regard to the significance of Article 7 to the answer to the second question referred, see point 96 of this Opinion.
      
      84 –	In the procedure laid down by Article 234 EC providing for cooperation between national courts and the Court of Justice,
         it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the
         case before it. In accordance with settled case-law, in the context of preliminary ruling proceedings, the Court is therefore
         able to reformulate the questions referred for a preliminary ruling. See, in this regard, for example, Case C-88/99 Roquette Frères [2000] ECR I-10465, paragraph 18; Case C-286/05 Haug [2006] ECR I-4121, paragraph 17; Case C-45/06 Campina [2007] ECR I-2089, paragraph 30; Case C-420/06 Jager [2008] ECR I-1315, paragraph 46; and Case C-350/07 Kattner Stahlbau [2009] ECR I-1513, paragraph 24.
      
      85 –	For general information relating to the principles of ‘defective partnerships’ (fehlerhafte Gesellschaft) in German legal literature, see, for example, Schmidt, K., cited above in footnote 21, p. 137 et seq., and Ulmer, P. and
         Schäfer, C., cited above in footnote 21, commentary on Paragraph 705, paragraph 323 et seq. With regard to the application
         of such principles to the entry by a consumer into a closed-end real property fund, see, for example, Ulmer, P. and Schäfer,
         C., cited above in footnote 21, commentary on Paragraph 705, paragraph 393; von Weschpfennig, A., cited above in footnote
         3, p. 102.
      
      86 –	It should be pointed out that the Court may answer the second question referred even if it holds in relation to the first
         question that Directive 85/577 does not apply in this case; the case-law established in Dzodzi, Gmurzynska-Bscher and Leur-Bloem and in subsequent cases allows it to do so. In these cases, the Court held that, where national provisions are applied, those
         provisions should be applied in the same way both to situations falling within the scope of national law and to those covered
         by Community law. See Joined Cases C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763; Case C-231/89 Gmurzynska-Bscher [1990] ECR I-4003; Case C-28/95 Leur-Bloem [1997] ECR I-4161; Case C-53/96 Hermès [1998] ECR I-3603; and Case C-306/99 BIAO [2003] ECR I-1.
      
      87 –	Article 5(1) of Directive 85/577 lays down a period of not less than seven days, but a longer renunciation period can be
         laid down in the law of the Member States. In German law, that period was one week under the HWiG in force at the time of
         the facts in the main proceedings; under Paragraph 312, currently in force, in conjunction with Paragraph 355 of the Bürgerliches
         Gesetzbuch, that period is two weeks. 
      
      88 –	In Heininger, cited above in footnote 52, the Court held that Directive 85/577 precluded the national law from laying down a renunciation
         period of one year if the consumer had not been given notice of his right of renunciation. If the consumer has not been given
         notice of his right of renunciation, he may therefore renounce the effects of his undertaking without restriction. 
      
      89 –	See to this effect, for example, Apis-Hristovich, paragraph 32, Magoora, paragraph 33, and MOTOE, paragraph 30, all cited above in footnote 71.
      
      90 –	In this regard, see also Micklitz, H.-W., cited above in footnote 75, paragraph 80. See also Martín Briceño, M. del R.,
         cited above in footnote 43, p. 165; Gabrielli, G., ‘Die Umsetzung der Richtlinie 85/577/EWG über Haustürgeschäfte in Deutschland
         und Italien’, in Canaris, C.-W. and Zaccaria, A., Die Umsetzung von zivilrechtlichen Richtlinien der Europäischen Gemeinschaften in Italien und Deutschland, Duncker & Humblot, Berlin, 2002, p. 62 et seq. See also Ehricke, U., ‘L’extension au contrat d’acquisition du bien immobilier
         des effets juridiques de la révocation d’un contrat de crédit immobilier en application de la directive 85/577/CEE sur le
         démarchage à domicile. Réflexions sur les limites des principes d’interprétation conforme et d’effet utile des directives’,
         Revue européenne de droit bancaire et financier (EUREDIA), No 1/2004, p. 163, who states that Member States are free to regulate the consumer’s right of cancellation provided that
         they comply with the provision in Article 5(2) of Directive 85/577 releasing the consumer from any obligations under the cancelled
         contract. 
      
      91 –	Schulte, cited above in footnote 4, paragraphs 88 and 92.
      
      92 –	See paragraph 20 of the order for reference. Armbrüster likewise points out that the other partners are, in principle,
         also consumers and that, where one consumer withdraws from a closed-end real property fund established in the form of a civil-law
         partnership, a conflict arises between the contradictory interests of the consumers. See Armbrüster, C., cited above in footnote
         45, p. 25. See also von Weschpfennig, A., cited above in footnote 3, p. 100. 
      
      93 –	See also to this effect Assmann, H.-D, and Schütze, R.A., Handbuch des Kapitalanlagerechts, 3rd edition, Beck, Munich, 2007, § 16, paragraph 73; von Weschpfennig, A., cited above in footnote 3, p. 105; the authors
         point out inter alia that the withdrawal of one partner would be detrimental to the other ‘slower’ partners. See also Armbrüster,
         C., dcited above in footnote 45, p. 31. 
      
      94 –	See point 50 of this Opinion. 
      
      95 –	In addition, legal literature states in this regard that legal certainty on the part of the consumer takes priority over
         that of the trader; in this regard, see Van Huffel, M., ‘Cour de justice des Communautés européennes, 13 décembre 2001’, Droit de la consommation, No 58/2003, p. 47.