Eva Martín Martín v EDP Editores SL.
Date: 2009-12-17
19. In order to reply to that question, it should at the outset be recalled that Community law does not, in principle, require national courts to raise of their own motion an issue concerning the breach of provisions of Community law, where examination of that issue would oblige them to go beyond the ambit of the dispute defined by the parties themselves and rely on facts and circumstances other than those on which the party with an interest in application of those provisions has based his claim (see, to that effect, inter alia, Case C‑430/93 van Schijndel and van Veen  [1995] ECR I‑4705, paragraph 22 and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others [2007] ECR I‑4233, paragraph 36).
20. That limitation on the power of the national court is justified by the principle that, in a civil suit, it is for the parties to take the initiative, and that, as a result, the court is able to act of its own motion only in exceptional cases where the public interest requires its intervention (see van Schijndel and van Veen , paragraph 21 and van der Weerd and Others , paragraph 35).
22. In that regard, it should be noted that the Directive, as is apparent from recitals 4 and 5, is designed to protect consumers against the risks inherent in the conclusion of contracts away from business premises (Case C‑412/06 Hamilton [2008] ECR I‑2383, paragraph 32), as the special feature of those contracts is that as a rule it is the trader who initiates the contract negotiations, and the consumer has not prepared for such door-to-door selling by, inter alia, comparing the price and quality of the different offers available.
23. It is on account of that imbalance that the directive ensures consumer protection by granting, first of all, a right of cancellation to the consumer. Such a right seeks specifically to offset the disadvantage, for the consumer, of sales which take place away from business premises, to enable him over a period of at least seven days to assess the obligations arising under the contract (see, to that effect, Hamilton , paragraph 33).
25.  Lastly, it is apparent from Article 5(1) of the Directive that the minimum period of seven days must be calculated from the date of receipt of that notice from the trader. That provision is explained, as the Court has previously indicated, 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 (Case C‑481/99 Heininger [2001] ECR I‑9945, paragraph 45).
29. In those circumstances, it must be held that, in the event that the consumer has not been duly informed of her right of cancellation, the national court seised may raise, of its own motion, an infringement of the requirements laid down in Article 4 of the Directive.
31. In that regard, the Court has previously stated that, while the third paragraph of Article 4 leaves it to the Member States to legislate as regards the legal effects of a failure to comply with the obligation to give notice, the national courts, when hearing a case between individuals, must, for their part, interpret the whole body of rules of national law so far as possible in the light of the wording and purpose of the Directive in order to achieve an outcome consistent with the objective pursued by that directive (see, inter alia, to that effect, Case C‑350/03 Schulte [2005] ECR I‑9215, paragraphs 69, 71 and 102).
33. Second, it must also be borne in mind that the Directive provides for a minimum level of harmonisation inasmuch as, under Article 8, the Directive does not prevent Member States from adopting or maintaining more favourable provisions to protect consumers in the field which it covers (see, to that effect, Hamilton , paragraph 48).
35. It should lastly be pointed out that, first, that finding does not rule out the possibility that other measures might also ensure that level of protection, such as, for example, the resetting of the relevant time‑limits relating to the cancellation of the contract, thus placing the consumer in a position to exercise the right which is granted to him by Article 5(1) of the Directive. Second, the national court seised may also have to take account, in certain circumstances, of the consumer’s wish not to have the contract at issue cancelled (see, by analogy, Case C‑243/08 Pannon GSM [2009] ECR I‑0000, paragraph 33).