Annelore Hamilton v Volksbank Filder eG.
Date: 2008-04-10
22. On the other hand, the Commission of the European Communities considers that, by the reference for a preliminary ruling, the Court is being asked to consider whether a further cancellation of the contract was possible after Ms Hamilton had cancelled the loan contract at issue by making an early repayment of the loan. The Commission states in that regard – with particular reference to paragraph 35 of Heininger , paragraphs 69 and 70 of the judgment in Case C‑350/03 Schulte  [2005] ECR I‑9215 and paragraph 34 of the order for reference – that although the question of the cancellation of a secured credit agreement comes within the scope of the doorstep selling directive, the consequences of such a cancellation are a matter for national law, which must, however, be interpreted, as far as possible, in the light of the wording and purpose of the directive. Consequently, the Commission considers that the reference for a preliminary ruling is admissible.
23. It must be borne in mind in that regard that it is solely for the national court before which a 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. However, the Court has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious, inter alia, that the interpretation of Community law sought by that court bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical (see Schulte , paragraph 43 and the case-law cited).
32. It should first be pointed out that the doorstep selling directive is primarily designed to protect consumers against the risks arising from the conclusion of contracts away from business premises (see, to that effect, Schulte , paragraph 66).
33. Thus, the fifth recital in the preamble to the doorstep selling directive states that the consumer should be given a right of cancellation over a period of at least seven days in order to enable him to assess the obligations arising under the contract. The fact that the minimum period of seven days must be calculated from receipt by the consumer of the notice concerning that right is explained by the fact that, if the consumer is not aware of the existence of the right of cancellation, he will not be able to exercise that right ( Heininger , paragraph 45).
39. Moreover, the term ‘appropriate’ in the abovementioned provision indicates that such measures do not seek to provide absolute protection for consumers. The Member States must exercise their discretion in accordance both with the principal aim of the doorstep selling directive and with the other provisions thereof.
40. Although it is true, as has been pointed out in paragraph 32 of the present judgment, that the principal aim of the doorstep selling directive is to protect consumers, it should be pointed out that both the general structure of the directive and the wording of several of its provisions indicate that such protection is subject to certain limits.
46. That interpretation is not weakened by the judgments in Heininger  and Schulte  or in Case C‑229/04 Crailsheimer Volksbank  [2005] ECR I‑9273. It can be seen from paragraphs 16 and 18 of Heininger , paragraph 26 of Schulte  and paragraph 24 of Crailsheimer Volksbank  that the interpretation of the doorstep selling directive provided by the Court in those judgments concerns loan contracts which had not been fully performed. However, that is not the position in the case before the referring court.
48. It should be borne in mind – with regard to the one-month time-limit provided for by the national legislation at issue in the main proceedings, which runs from the performance in full by the parties of their obligations under the contract – that, under Article 8 of the doorstep selling directive, that directive does not prevent Member States from adopting or maintaining more favourable provisions to protect consumers in the field which it covers.
49. In the light of all the foregoing, the answer to the first question referred to the Court must be that the doorstep selling directive must be interpreted as meaning that the national legislature is entitled to provide that the right of cancellation laid down in Article 5(1) of the directive may be exercised no later than one month from the time at which the contracting parties have performed in full their obligations under a contract for long-term credit, where the consumer has been given defective notice concerning the exercise of that right.