Walbusch Walter Busch GmbH & Co. KG v Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV.
Date: 2019-01-23
27


Furthermore, the referring court states that the interpretation of that provision of Directive 2011/83 should take account of the freedom to conduct a business recognised by Article 16 of the Charter. In particular, as is apparent from the judgment of the Court of Justice of 17 December 2015, Neptune Distribution (C‑157/14, EU:C:2015:823, paragraph 67), that freedom includes the freedom to advertise, and the trader’s choice relating to the media used to that end must not be restricted disproportionately, in accordance with Article 52(1) of the Charter.
34


In that regard, as is clear from Article 1 of Directive 2011/83, read in the light of recitals 4, 5 and 7, that directive aims to provide a high level of consumer protection by ensuring that consumers are informed and secure in transactions with traders. In addition, consumer protection is enshrined in EU policies by Article 169 TFEU and Article 38 of the Charter (see, to that effect, judgment of 2 March 2017, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main, C‑568/15, EU:C:2017:154, paragraph 28).
35


The purpose of Directive 2011/83 is to afford consumers extensive protection by conferring on them a number of rights in relation to, inter alia, distance contracts. The objective of the EU legislature is to avoid a situation where the use of means of distance communication leads to a reduction in the information provided to the consumer (see, by analogy, judgment of 5 July 2012, Content Services, C‑49/11, EU:C:2012:419, paragraph 36).
36


The information provided, before a contract is concluded, on the terms of the contract and the consequences of concluding it, is of fundamental importance for a consumer (judgment of 13 September 2018, Wind Tre and Vodafone Italia, C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 46). It is on the basis of that information that the consumer decides whether he wishes to be contractually bound to the trader.
41


In that regard, it should be noted that the solution adopted in Article 8(1) and (4) of Directive 2011/83, as described in paragraphs 37 to 40 above, is intended to ensure the right balance between a high level of consumer protection and the competitiveness of undertakings, as is stated in recital 4 of that directive.
42


The obligation to provide information set out in Article 8(1) and (4) of Directive 2011/83 means that the consumer receives, in an appropriate way, before the distance contract is concluded, the information needed to enable him to decide whether or not to conclude the contract, thereby meeting the legitimate objective in the public interest of consumer protection, in accordance with Article 169 TFEU, recalled in recital 3 of that directive, without, however, affecting the essence of the entrepreneur’s freedom of expression and information, or its freedom to conduct a business, as enshrined in Articles 11 and 16 of the Charter.
45


The right of withdrawal is designed to protect the consumer in the particular situation of mail-order sales, in which he is not actually able to see the product or ascertain the nature of the service provided before concluding the contract. The right of withdrawal is therefore intended to offset the disadvantage for the consumer resulting from a distance contract by granting him an appropriate period for reflection during which he can examine and test the goods acquired (see, by analogy, judgment of 3 September 2009, Messner, C‑489/07, EU:C:2009:502, paragraph 20).