Georg Heininger and Helga Heininger v Bayerische Hypo- und Vereinsbank AG.
Date: 2001-12-13
16 By a contract dated 28 April 1993 and 7 May 1993 (the loan agreement), Mr and Mrs Heininger took out a loan in the sum of DM 150 000 from the bank in order to finance the purchase of a flat. The loan was secured by means of a Grundschuld (charge on the property) in the same amount.
18 Mr and Mrs Heininger sought an order that the bank reimburse to them the sums paid by way of capital and interest and refund to them the costs they incurred in connection with the execution of the loan agreement, the total sum claimed being DM 118 443.81. They further sought a declaration that no rights accrued to the bank under the loan agreement.
26 On the basis of that premiss a reply should therefore be given to the first question. By that question the referring court is essentially asking whether the doorstep-selling directive must be interpreted as applying to a secured-credit agreement such as that in point in the present case, with the result that a consumer who has entered into an agreement of that type in one of the cases specified in Article 1 has the right to cancel that agreement, as provided for in Article 5.
31 So far as that point is concerned, it should first be observed that it is settled case-law that derogations from Community rules for the protection of consumers must be interpreted strictly (see, inter alia, Case C-203/99 Veedfald [2001] ECR I-3569, paragraph 15).
35 It may be added that although a credit agreement such as that in point in the present case accordingly falls within the scope of the doorstep-selling directive, the effects of a cancellation of that agreement in accordance with the directive on the contract for the purchase of the immovable property and on the provision of security in the form of a charge on it fall to be governed by national law.
38 It is sufficient to observe, as regards those submissions, that the doorstep-selling directive is, as pointed out earlier, designed to protect consumers against the risks arising from the conclusion of contracts away from the trader's premises and, second, that that protection is assured by the introduction of a right of cancellation.
45 It should next be pointed out that the doorstep-selling directive thus expressly provides that the minimum period of seven days prescribed for cancellation must be calculated from receipt by the consumer of the notice concerning his right of cancellation, and that it is on the trader that the obligation falls to provide that information. Those provisions are 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.
47 Finally, as regards the argument that it is essential, for reasons of legal certainty, to restrict the period within which the right of cancellation may be exercised, such reasons cannot prevail since they imply a limitation of the rights expressly conferred on consumers by the doorstep-selling directive in order to protect them against the risks arising from the fact that the credit institutions have chosen to enter into agreements away from their business premises. If those institutions choose such methods in order to market their services, they can easily safeguard both the interests of consumers and their own requirements as to legal certainty by complying with their duty to supply consumers with information.
48 In the light of those considerations the answer to the second question must be that the doorstep-selling directive precludes the national legislature from imposing a time-limit of one year from the conclusion of the contract within which the right of cancellation provided for in Article 5 of that directive may be exercised, where the consumer has not received the information specified in Article 4.
Temporal effects of the present judgment
51 It should be borne in mind that the interpretation given by the Court to a provision of Community law clarifies and defines its meaning and scope only as it should have been understood and applied from the time of its entry into force (Case C-35/97 Commission v France [1998] ECR I-5325, paragraph 46).
52 It is settled case-law, that the Court may exceptionally, having regard to the general principle of legal certainty inherent in the Community legal order and the serious difficulties which its judgment may create as regards the past for legal relations established in good faith, find it necessary to limit the possibility for interested parties, relying on the Court's interpretation of a provision, to call in question those legal relations. The Court was concerned to establish that the two essential criteria were fulfilled for deciding to impose such a limitation, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see, to that effect, Case C-128/93 Fisscher [1994] ECR I-4583, paragraph 18).