By Leo Gasteen
When a consumer withdraws from a long distance contract within seven working days, the entirety of the sum, including delivery fee, must be repaid to the consumer, the European Court of Justice (ECJ) has ruled.
The ruling follows a legal action brought before Heinrich Heine, a German mail-order company, by the German consumer association to restrain their commercial practise on grounds that their methods of reimbursement are contrary to EC Directive 97/7/EC.
The Directive on the protection of consumers in respect of distance contracts states that a consumer may withdraw from a distance contract within a period of at least seven working days without penalty and without giving any reason. Where a consumer exercises his right of withdrawal, the supplier is obliged to reimburse him the sums paid free of charge. The only charge that may be made to the consumer because of the exercise of his right of withdrawal is the direct cost of returning the goods.
As German national law does not specify the limits of reimbursement, the case was brought before the ECJ for review.
The ECJ concluded that because EC Directives preclude all national legislation, Heinrich Heine must cease charging the costs of delivering the goods to the consumer where the latter exercises his right of withdrawal in a period of seven days or less.
Background
Heinrich Heine, a mail-order company, provides in its general conditions of sale that the consumer is to pay a flat rate charge of EUR 4.95 for delivery. That sum is not refunded by the supplier even if the consumer exercises his right of withdrawal. The Verbraucherzentrale Nordrhein-Westfalen, a German consumer association, brought an action against Heinrich Heine for an injunction to restrain it from continuing with that practice, since it considers that, in the event of withdrawal, delivery costs must not be charged to the consumer. In the view of the Bundesgerichtshof (German Supreme Court), the court which must decide on the matter at last instance, German law does not grant the buyer any explicit right to reimbursement of the costs of delivering the goods ordered. However, since that court has doubts as to the compatibility with the directive of charging the costs of delivering the goods to the consumer even where the latter has exercised his right of withdrawal, it decided to request the Court of Justice to interpret the directive.
European Court of Justice – Justice and Application – Full Text
