Elisabeth Schulte and Wolfgang Schulte v Deutsche Bausparkasse Badenia AG.
Date: 2005-10-25
13. Finally, the Court observed that the minimum period of seven days allowed for cancellation must be calculated from the time the consumer receives the notice concerning his right of cancellation from the trader. In paragraph 48 of the judgment in Heininger  it held 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.
The national legislation
24. Finally, the purchasers entered into two ‘real estate savings’ agreements with the Bank, each covering half of the amount borrowed. It was agreed that the loan would be redeemed only with the maturity of the first real estate savings agreement. The loan agreement contained no information regarding the right of cancellation within the meaning of the HWiG.
26. As Mr and Mrs Schulte failed to meet their monthly repayment obligations under the loan agreement, the Bank terminated the agreement, demanded immediate repayment of the loan and, in the absence of any payment, sought to enforce payment on the basis of the notarised deed of 8 May 1992.
34. It follows that, in the event of the cancellation of a secured credit agreement, Paragraph 3(1) and (3) of the HWiG gives the lending Bank a right to repayment of the net amount of credit paid with interest at the market rate.
43. As to those submissions, 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. However, the Court has held that it has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious 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 (Case C-415/93 Bosman  [1995] ECR I-4921, paragraphs 59 and 61).
66. That is what the Court observed in paragraph 38 of its judgment in Heininger , pointing out, first, that the Directive is designed to protect consumers against the risks arising from the conclusion of contr acts away from the trader’s premises and, second, that the protection of the consumer is assured by the introduction of a right of cancellation.
68. In paragraph 35 of the judgment in Heininger  the Court referred to the latter of those provisions, adding that although a credit agreement 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.
69. Although it is thus for the Member States to legislate as regards the legal effects of cancellation, that power must be exercised in accordance with Community law and, in particular, the rules of the Directive interpreted in the light of its objective and in such a way as to ensure that it is fully effective. In fulfilling their obligations under a Directive the Member States are to take all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (Case C-336/97 Commission  v Italy  [1999] ECR I-3771, paragraph 19, and Case C-324/01 Commission  v Belgium  [2002] ECR I-11197, paragraph 18).
70. It must be added that the Court has held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual (Case C‑91/92 Faccini Dori  [1994] ECR I-3325, paragraph 20, and Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others  [2004] ECR I-8835, paragraph 108).
71. However, when hearing a case between individuals, the national court is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, 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 the directive (see Pfeiffer and Others , cited above, paragraph 120).
The first and second questions, concerning the effect of cancellation of the loan agreement on the purchase contract
79. Moreover, the Court has already pointed out, in paragraph 35 of its judgment in Heininger , that the effects of a cancellation of a secured credit 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.
102. As observed in paragraph 71 of this judgment, the national courts are required to interpret national legislation, so far as possible, in order to achieve the outcome described in paragraph 101 of this judgment.