Opinion of the Advocate-General

Opinion of the Advocate-General

Table of contents

I –  Introduction

II –  Legal framework

A – Community law

B – National law

III –  Facts and questions referred for a preliminary ruling

IV –  Proceedings before the Court of Justice

V –  Main arguments of the parties

VI –  Legal assessment

A – Preliminary remarks

B – Preliminary considerations regarding the character and function of compensation for use

C – The stages of analysis resulting from the question referred

D – Does compensation come under the concept of penalty and is it not therefore compatible with Directive 97/7?

E – Does compensation come under the concept of charges and is it, for that reason, incompatible with Directive 97/7?

1. The concept of charges in Directive 97/7 – Interpretation based on the wording and the sentence structure

2. The concept of charges in Directive 97/7 – Teleological and schematic approach

3. A detailed analysis of the concept of distribution of risk underlying Directive 97/7 supports the interpretation adopted thus far

4. Failure to fulfil the duty to provide information and the consequences of such failure

5. May the possibility of abuse by individuals lead to rules which are detrimental to all consumers?

6. Distinguishing the case-law in Schulte and Crailsheimer Volksbank

7. Conclusion

F – For the sake of completeness, in the event that it is decided that compensation is not covered by the concepts of penalty or charge under Directive 97/7: does a provision on compensation fall within the regulatory discretion of the Member States?

VII –  Conclusion

I – Introduction

1. The present reference for a preliminary ruling concerns the interpretation of Article 6(2) in conjunction with the second sentence of the first subparagraph of Article 6(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts. (2)

2. The main proceedings concern the rescission of a distance contract. The parties in the main proceedings are in dispute as to whether the defendant is entitled, in the context of repayment of the purchase price, to deduct from that price compensation for use by the applicant.

3. A feature of distance contracts is that the sale is not discussed in a shop. Neither in the preparations for the contract nor at the conclusion of the contract is there any personal contact between the seller – who is described more logically in this context as the supplier – and the consumer in the sense of simultaneous physical presence. (3) The contract is concluded under a specifically organised distance sales or service-provision scheme run by the supplier. (4) To that end, means of distance communication are used exclusively; ‘means of communication’ is given a broad definition in the context of Directive 97/7 under Annex I to that directive. It encompasses, on the one hand, long-established means of distance communication in the form of letters, printed matter, catalogues and telephone calls. On the other hand, it also includes new means of communication resulting from advancing developments which enable business and trade to be conducted using the internet and other media, such as videotext, videophone, electronic mail and teleshopping. In particular, consumer protection arrangements must also be adapted as the new technologies develop, without disregarding the interests of suppliers. In examining the present case, it must therefore also be borne in mind that business and trade using the internet and using similar modern media are likely to become much more widespread in future than is the case today.

II – Legal framework

A – Community law

4. The 14th recital in the preamble to Directive 97/7 states:

‘… the consumer is not able actually to see the product or ascertain the nature of the service provided before concluding the contract; … provision should be made, unless otherwise specified in this Directive, for a right of withdrawal from the contract; … if this right is to be more than formal, the costs, if any, borne by the consumer when exercising the right of withdrawal must be limited to the direct costs for returning the goods; … this right of withdrawal shall be without prejudice to the consumer’s rights under national laws, with particular regard to the receipt of damaged products and services or of products and services not corresponding to the description given in the offer of such products or services; … it is for the Member States to determine the other conditions and arrangements following exercise of the right of withdrawal’.

5. Article 5 of Directive 97/7 contains provisions regarding the information which suppliers must provide to consumers.

6. Article 6 of Directive 97/7 provides:

‘Right of withdrawal

1. For any distance contract the consumer shall have a period of at least seven working days in which to withdraw from the contract without penalty and without giving any reason. 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.

The period for exercise of this right shall begin

– in the case of goods, from the day of receipt by the consumer where the obligations laid down in Article 5 have been fulfilled;

....

If the supplier has failed to fulfil the obligations laid down in Article 5, the period shall be three months. The period shall begin

– in the case of goods, from the day of receipt by the consumer;

...

If the information referred to in Article 5 is supplied within this three-month period, the seven working day period referred to in the first subparagraph shall begin as from that moment.

2. Where the right of withdrawal has been exercised by the consumer pursuant to this Article, the supplier shall be obliged to reimburse the sums paid by the consumer 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. Such reimbursement must be carried out as soon as possible and in any case within 30 days.

3. …’

B – National law

7. Directive 97/7 is transposed into German law in particular by Paragraph 312b et seq. of the Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’ (5) ) and the provisions of the Verordnung über Informations‑ und Nachweispflichten nach bürgerlichem Recht (Regulation on the provision of information in civil law; ‘the BGB‑InfoV’ (6) ).

8. Paragraph 312d of the BGB, which has the heading ‘Right of withdrawal and return in respect of distance contracts’, states:

‘1. In respect of a distance contract a consumer has a right of withdrawal under Paragraph 355. In the case of contracts for the supply of goods, the consumer may be granted a right of return under Paragraph 356 instead of the right of withdrawal.

2. In derogation from the first sentence of Paragraph 355(2), the withdrawal period shall not commence before the duties to provide information in accordance with Paragraph 312c(2) have been fulfilled; in the case of the supply of goods not before the date on which they are received by the recipient; in the case of recurrent supplies of goods of the same kind not before the date on which the first instalment is received by the recipient; and in the case of services not before the date on which the contract is concluded.’

9. Paragraph 355 of the BGB, which is headed ‘Right of withdrawal in respect of consumer contracts’, provides:

‘1. If a consumer is granted a statutory right of withdrawal under this provision, he shall no longer be bound by his declaration of intention to conclude the contract if he has withdrawn from it in good time. The withdrawal does not have to give any reasons and must be declared to the economic operator in writing or by returning the item within two weeks; the withdrawal period shall be deemed to be observed in the case of dispatch in good time.

2. The period shall commence when the consumer has been informed in writing by a clearly formulated notice of his right of withdrawal which makes clear to him his rights in accordance with the requirements of the means of communication used and which also states the name and address of the person to whom withdrawal is to be declared and refers to the beginning of the period and the rules in the second sentence of paragraph 1. If notice is given after the contract has been concluded, the period shall be one month in derogation from the second sentence of paragraph 1. If the contract is to be concluded in writing, the period shall not begin until the consumer has also been provided with a contract document, his written application or a copy of the contract document or of the application. If the time at which the period commences is disputed, the economic operator shall bear the burden of proof.

3. The right of withdrawal shall expire at the latest six months after the conclusion of the contract. In the case of the supply of goods the period shall not commence before the date on which they are received by the recipient. In derogation from the first sentence, the right of withdrawal shall not expire if the consumer is not given due notice of his right of withdrawal, and in the case of distance contracts concerning financial services it shall also not expire if the economic operator has not duly fulfilled his duties to provide information in accordance with Paragraph 312c(2)(1).’

10. Paragraph 357 of the BGB, which is headed ‘Legal consequences of withdrawal and return’, states:

‘1. Unless otherwise provided, the provisions on statutory termination shall apply mutatis mutandis to the right of withdrawal and return. Paragraph 286(3) shall apply mutatis mutandis to the obligation to reimburse payments under that provision; the period laid down therein shall commence with the declaration of withdrawal or return by the consumer. In this connection the period shall commence with regard to an obligation to reimburse on the part of the consumer when that declaration is made and with regard to an obligation to reimburse on the part of the economic operator when it is received.

…

3. In derogation from point 3 of the first sentence of Paragraph 346(2), the consumer shall pay compensation in respect of deterioration in the goods as a result of their proper use if he has been informed in writing of this legal consequence and of a means of avoiding it at the latest when the contract is concluded. This shall not apply if the deterioration is due solely to testing of the item. Point 3 of the first sentence of Paragraph 346(3) shall not apply if the consumer has been given due notice of his right of withdrawal or if he has become aware of it in some other way.

4. The above provisions shall be exhaustive as regards the rights of the parties.’

11. Paragraph 14(1) and (3) of the BGB‑InfoV contains provisions on the form of the notice of the right of withdrawal and return and on the use of a model.

12. In this regard, the model notice of the right of withdrawal set out in Annex 2 to Paragraph 14(1) and (3) of the BGB‑InfoV is worded as follows:

‘Right of withdrawal

You are entitled to cancel your order in writing (for example, letter, fax, e-mail) within two weeks without giving any reasons or – if the goods have been delivered to you before the end of that period – by returning the goods. The withdrawal period shall commence upon receipt of this written notice. The withdrawal period shall be deemed to be observed if the withdrawal or the goods are sent in good time. …

Consequences of withdrawal

In the event of an effective withdrawal, any goods or payments received by either party must be returned and any benefits that may have been obtained (for example, interest) ... are to be repaid. If you are not able to return to us the goods received or are only able to do so in part or in a deteriorated state, you will be required to compensate us accordingly. In the case of the sale of goods this does not apply if the deterioration of the goods is due solely to their testing as may, for example, have been permitted in a shop.

In addition, you may avoid the obligation to pay compensation for any deterioration as a result of proper use of the goods by not utilising the goods as though they were your property and avoiding any activity that could adversely affect their value.

Any goods which can be sent as a parcel are to be returned at our expense and risk. Any goods that cannot be sent as a parcel will be collected from you.’

III – Facts and questions referred for a preliminary ruling

13. The applicant in the main proceedings is a consumer. The defendant in the main proceedings is a company which runs a mail-order business on the internet.

14. Following an offer made by the defendant on the internet, on 2 December 2005 the applicant bought from it a used laptop computer at a price of EUR 278.00.

15. At the time of that sale, the defendant placed general terms and conditions of business on the internet, in which it was stated, inter alia, that: ‘… You shall no longer be bound by the contract entered into if within a period of 14 days of receipt of the goods they are returned at your own expense and risk. That period shall be deemed to be observed if the goods are sent to us in good time and we are given prior notice thereof in writing. Any goods which are returned to us without prior notice will not be accepted. … Finally, your attention is expressly drawn to the fact that you are liable to pay compensation for the deterioration in goods ordered from us as a result of use for the purpose for which they were intended and we recommend that you think carefully before using goods ordered from us if you are unsure as to whether you intend to keep them. You will understand that goods which have already been used can be resold to other customers only at a reduced price. As a rule, the value of the goods is reduced by 15%. The obligation to pay compensation does not apply to goods which are returned unused in their original packaging. You do, however, retain the right to test goods purchased from us.’

16. In August 2006, the computer display became defective. The applicant informed the defendant of that defect in the display on 4 August 2006. The defendant refused to repair the defect free of charge.

17. On 7 November 2006, the applicant informed the defendant that she was withdrawing from the contract of sale and offered to return the laptop computer in return for a refund of the purchase price.

18. The applicant is claiming payment of EUR 278.00 plus interest and extrajudicial costs from the defendant and is seeking a declaration that the defendant is in default as regards acceptance of payment.

19. In response to that claim, the defendant objected that the applicant was, in any case, required to pay it compensation for her use of the laptop computer for approximately eight months. For a comparable computer, the average market rental price for three months is EUR 118.80, resulting in total compensation of EUR 316.80 in respect of the period during which the applicant had been using the computer, which can be offset against the payment claimed.

20. The referring court takes the view that the applicant’s withdrawal from the contract took place within the period laid down to that end since the applicant did not receive an effective notice of the right of withdrawal.

21. In this connection, it states that under national law the withdrawal period does not begin until the defendant’s duties to provide information have been fulfilled. In the view of the referring court, the defendant’s notice of the right of withdrawal and its consequences does not comply with Paragraph 312c(2) of the BGB and Annex 2 to Paragraph 14(1) and (3) of the BGB‑InfoV and is therefore ineffective. In this respect, the referring court mentions various aspects of the notice. (7)

22. With regard to the rescission, the referring court states that under national law, in the case of a withdrawal under the first sentence of Paragraph 312d(1) in conjunction with Paragraphs 355, 357(1) and 346(1) of the BGB, the consumer is required to return any goods or payment received. In addition, under Paragraph 346(1) of the BGB, the benefits obtained are also to be returned. To the extent that return is excluded by the nature of what has been obtained, the obligor must pay compensation in accordance with point 1 of the first sentence of Paragraph 346(2) of the BGB. In terms of Paragraph 100 of the BGB, benefits are the fruits of an item and the advantages that the use of the item affords.

23. The referring court explains that the decision on the applicant’s claim for repayment of the EUR 278.00 which she paid turns on the answer to the question whether the defendant is entitled, in the context of refund of the purchase price, to deduct from that price the compensation constituted by the benefits obtained by the applicant from the consumer goods. In this connection, it is not decisive to the outcome of the case that the computer became defective from August 2006. That event serves merely to determine the period of benefit from use of that computer. It is to be presumed that the applicant did not use the computer otherwise than in the correct manner. (8)

24. In those circumstances, by decision of 26 October 2007, the Amtsgericht Lahr (Local Court, Lahr) (Germany) referred to the Court of Justice the following question:

‘Is Article 6(2) in conjunction with the second sentence of Article 6(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts to be interpreted as precluding a provision of national law which provides that, in the case of a revocation by a consumer within the revocation period, a seller may claim compensation for the value of the use of the consumer goods delivered?’

IV – Proceedings before the Court of Justice

25. The order for reference was lodged at the Court Registry on 5 November 2007.

26. Written observations were submitted by the Belgian, German, Spanish, Austrian and Portuguese Governments and by the Commission within the period laid down in Article 23 of the Statute of the Court of Justice.

27. After the end of the written procedure, a hearing took place on 11 December 2008 in which the German and Spanish Governments and the Commission made oral submissions.

V – Main arguments of the parties

28. The observations submitted to the Court can be divided into two lines of argument, within which further nuances are evident. In essence, the German and Austrian Governments and the Commission argue that the question is to be answered in the negative, whilst the Belgian, Spanish and Portuguese Governments propose the opposite answer.

29. The range of proposed answers reflects the fact that there is a considerable margin of interpretation as regards the answer to the question referred. (9)

30. The German and Austrian Governments take the view that Directive 97/7 permits a national provision on compensation for benefit actually obtained. The directive leaves open the question whether and to what extent consumers are required to compensate for the benefit obtained. Compensation for use constitutes neither ‘costs’ nor a ‘charge’ within the meaning of the 14th recital in the preamble to and the second sentence of the first subparagraph of Article 6(1) and Article 6(2) of Directive 97/7 nor a ‘penalty’ within the meaning of the first sentence of the first subparagraph of Article 6(1) of that directive. A ‘penalty’ within the meaning of the directive is a payment, the sole object of which is to impose a pecuniary sanction in respect of the withdrawal, without being linked to a specific financial loss on the part of the economic operator. The duty to compensate for benefits derived from use which are retained by the consumer does not constitute a sanction for withdrawal. ‘Costs’ or ‘charges’ arising out of the exercise of the right of withdrawal are simply the expenditure incurred in order to implement the withdrawal process. In the context of the exercise of the right of withdrawal, this involves an operation on the part of the consumer – returning the goods – and a processing operation for the supplier – reimbursing any purchase price which has already been paid. A broader interpretation of the expressions ‘cost’ or ‘charge’, on the basis of which claims against consumers under the rules on unjust enrichment would be ruled out, cannot be inferred from the wording and also does not follow from an interpretation based on the scheme, spirit and purpose of the directive. Directive 97/7 is characterised by two main principles: the completion of the internal market and consumer protection. Neither principle would be weakened by the national provision, which grants a reciprocal right to compensation for actual benefits obtained from use in the event of withdrawal.

31. The payment of such compensation for use is not therefore prohibited by Directive 97/7, but is subject to the discretion of the Member States. This follows from the last phrase of the 14th recital in the preamble to the directive, which provides that it is for the Member States to determine the other conditions and arrangements following exercise of the right of withdrawal. If before exercising his right of withdrawal the consumer not only tests the item purchased, but has used it intensively, with the result that he has been enriched, it would be improper to deny the supplier the opportunity to claim compensation from the consumer.

32. The Austrian Government adds that a national provision under which the supplier may, in the event of withdrawal from the contract, claim from the consumer compensation for use must be interpreted in conformity with the directive. The requirement to pay compensation for use would be incompatible with the purpose of the right of withdrawal under Article 6 of Directive 97/7 if the obligation to pay such compensation were imposed on the consumer where he merely inspects the item or uses it for the purpose for which it was intended for a short time in order to test it. Were a consumer generally to be exposed to such financial charges in the event that the right of withdrawal was exercised would amount to a sanction which is contrary to the directive and which would impair or even prevent the exercise of the right of withdrawal by the consumer. However, it is a fundamental aim of Directive 97/7 to avoid less favourable treatment of consumers who purchase by means of distance selling compared with those who conclude a contract of sale in the physical presence of both parties in the course of which they are generally able to inspect the item purchased free of charge (for example, by trying it on). Consequently, in distance selling an inspection must be able to take place when the goods are received, which will, it is true, occur after the contract has been concluded but which, by permitting the unrestricted exercise of the right of withdrawal, is intended to place the consumer in a comparable position to consumers who test the item purchased prior to the conclusion of a contract which does not then take place.

33. The German Government further states that the German provision at issue supplements the rules laid down in Directive 97/7 and complements the reversal of the payment relationship under that directive. It includes the (reciprocal) obligation to return the benefits obtained from use. In the event that the consumer exercises the right of withdrawal, under the first sentence of Paragraph 357(1) in conjunction with Paragraph 346(1) of the BGB the supplier is required to reimburse the sum of money received and to return any benefit obtained through the use of that money. Possible benefits in this sense could also be capital income such as interest, as well as expenditure saved through repayment of debts, such as credit charges. If the supplier has neither invested the money nor used it to repay debts, contrary to the rules of proper management, even though it would have been possible for him to do so, he is liable to pay the consumer compensation under the first sentence of Paragraph 357(1) in conjunction with the first sentence of Paragraph 347(1) of the BGB. For his part, the consumer is liable under the first sentence of Paragraph 357(1) in conjunction with Paragraph 346(1) and (2) of the BGB to pay compensation for any benefits obtained. Under Paragraph 100 of the BGB, ‘benefits’ means the advantages that the use of the item affords. In accordance with the case-law of the Bundesgerichtshof (Federal Court of Justice), in calculating the compensation, the actual period of use is to be put in proportion to the (still) possible period of use and multiplied by the price. On the basis of this method of calculation, the compensation to be paid by the consumer can never be higher than the purchase price. In general, the compensation will not be high. The claim made by the supplier in the main action is not conclusive as far as the amount is concerned. It should also be noted that the consumer is not threatened by any lack of evidence, since German law places on the supplier the duty to prove the allegation that the consumer actually obtained economically valuable benefits from the item and to prove the amount of any resulting claim.

34. Like the German and the Austrian Governments, the Commission takes the view that a provision on compensation for use, such as the German provision at issue, cannot be subsumed under the concept of ‘charges’. It is the settled case-law of the Court that Community law does not prevent national courts from taking steps to ensure that the protection of the rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them. (10) By way of qualification, the Commission notes, however, that it is not the case that national law can be applied to situations falling within the scope of Community law without influence from Community law. Rather, the settled case-law of the Court requires that the principles of equivalence and effectiveness must be observed when national law is applied to situations governed by Community law. (11) Observance of the principle of equivalence presupposes that the rule at issue applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues. The Commission cannot see any problems in the present case in this respect from the point of view of Community law. However, it does state that a legal situation would have to be assessed differently where in a context of distance selling the supplier was permitted to claim compensation for use which was calculated on the basis of abstract criteria and could therefore be prohibitive, thereby making it economically unattractive and thus practically impossible to assert the right of withdrawal. In the opinion of the Commission, compensation for use must be based on the actual value of the goods purchased and the expected life of the goods, with the result that it is calculated as a proportion of the original price and the length of use.

35. The Belgian, Spanish and Portuguese Governments take the view that Directive 97/7 precludes a national provision on compensation for benefits actually obtained.

36. According to Directive 97/7, the only charge that may be made to the consumer is the direct cost of returning the goods. The same is apparent from the 14th recital in the preamble to the directive and there is no scope for further charges to be made. The aim of Article 6(2) of Directive 97/7 is to restore the ‘status quo ante’, which includes only the return of the item or service received in exchange for the reimbursement of the payments made. It is particularly important to answer the question referred having regard to the aim of consumer protection pursued by the directive. In any relationship involving consumption, it is consumers who constitute the more vulnerable party. This is particularly true in the case of distance contracts. In that sector, in the view of the abovementioned governments, the consumer protection requirements must be particularly high in order to prevent the use of means of distance communication resulting in a reduction in consumer protection. The grant of a right of withdrawal to consumers is one of the key points of the rules. In accordance with the 14th recital in the preamble to the directive, the effectiveness of that right requires a prohibition of the imposition on the consumer, when exercising the right of withdrawal, of obligations going beyond merely returning the goods. If the seller had the opportunity to claim compensation for use of the goods – which would incidentally be difficult to determine – the exercise of the right to a grace period and withdrawal would be impaired, if not turned into a purely formal right, because the consumer would be prevented from exercising his right. To grant compensation to a seller who has not complied with his legal obligations to provide information would be contrary to the will of the Community legislature. For example, in Spanish law such compensation, which also serves as a sanction, is expressly ruled out.

VI – Legal assessment

A – Preliminary remarks

37. The central legal issue in the present reference for a preliminary ruling is the question whether the right of withdrawal under Directive 97/7 is consistent with a national provision under which, in the event of withdrawal from a distance contract, the consumer is granted compensation for temporary use of the goods in question.

38. By way of introduction, I would first like to point out that this is not the first time that the issue of compensation for the use of goods has been addressed in the case-law of the Court. I would refer in this connection to the judgment in Quelle , (12) which concerned the question whether in the case of a replacement for consumer goods which are not in conformity with the contract of sale a seller may require the consumer to pay compensation for the use of those goods. The Community law basis for that case was Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees. (13) In Quelle the Court concluded, following the Advocate General’s Opinion of 15 November 2007, (14) that Article 3 of Directive 1999/44 is to be interpreted as precluding national legislation under which a seller who has sold consumer goods which are not in conformity may require the consumer to pay compensation for the use of those defective goods until their replacement with new goods. (15)

39. An issue which was to some extent related was brought before the Court in Schulte (16) and Crailsheimer Volksbank (17) concerning the provision of capital, in so far as those cases related to the question whether it is compatible with the Community legislation on the right to cancel doorstep transactions if national legislation provides for an obligation on the consumer, in the event of cancellation of a secured credit agreement, not only to repay the amounts received under the agreement but also to pay to the lender interest at the market rate. The Community law basis for that case was Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises. (18) In Schulte and Crailsheimer Volksbank , the Court concluded that the obligation to pay interest at the market rate is compatible with the directive. (19)

40. With regard to Directive 97/7, which is at issue in the present case, there is not yet any case-law on the question of possible compensation for use. It will subsequently have to be clarified whether and to what extent the two lines of case-law mentioned above in points 38 and 39 may be relevant to the point of law at issue in the present case.

41. As a second preliminary remark, it should be briefly mentioned, because of the circumstances of the case, that Directive 97/7 does not draw any distinction between new and used goods. The right of withdrawal applies to both.

42. As a third preliminary remark, I would like to refer to two particular features of the main action. First of all, I would like to stress that the referring court asks its question against the background of a case in which a defect in the goods supplied, which appeared approximately seven months after the purchase, is factually relevant. However, the referring court expressly states that the existence of a defect is not relevant to the decision in its view, but can have importance only with regard to any assessment of the duration of the possible use. It follows that we are confronted with a legal question which is very different from that addressed in Quelle , (20) where the problem of compensation for use of goods supplied and subsequently returned had to be assessed in the context of a different directive. (21) In that case, the question of compensation arose in completely different circumstances, namely in connection with the supply of consumer goods which were not in conformity with the contract of sale and their replacement with new consumer goods.

43. I would also like to stress that, according to the facts established by the referring court, the withdrawal from the contract in the main proceedings took place a considerable time after the date of purchase, namely approximately eleven months. It can be seen from the order for reference that in the view of the referring court the withdrawal nevertheless took place in good time before the expiry of the withdrawal period, since the consumer had not received any effective notice of the right of withdrawal within the periods applicable under national law. (22) Against this background, the present order for reference does not include a question on whether the withdrawal by the consumer was made in good time. Therefore, the following legal analysis looks solely at the issue of the claim for compensation for use in the event of the rescission of distance contracts.

44. Even though the preliminary ruling procedure is geared to an interpretation of the relevant provisions of Community law based on the circumstances of the individual case, I would like to point out that it is essential in the present situation not to narrow the examination to a somewhat ‘atypical scenario’ such as the present case. It is necessary to consider scenarios where the issue will typically arise. The solution must also respond to those scenarios.

B – Preliminary considerations regarding the character and function of compensation for use

45. In order to define the problem addressed by the question referred, I would like to outline a few considerations on the character and function of compensation for use. In what situations might such compensation actually be due, if it were compatible with Directive 97/7? In this regard, I would first like to distinguish between ‘testing’ and ‘use’. I would then like to explain further what is specifically meant by ‘use’.

46. First of all, I would like to draw a distinction between ‘use’ and ‘testing’. Testing includes inspection, trying on and trying out, since part of the decision to purchase many goods, such as clothing and technical equipment, is assessing their functional characteristics. A structural feature of distance selling is that no demonstration item or demonstration equipment is available, but the purchased item itself takes on that function. (23) For example, when trying on clothing or footwear, not only is the appearance important, but also putting on and wearing the item to try it out. When purchasing a car by distance selling, as a rule the test drive should, as with a purchase on the premises, not be classified as use by the purchaser. (24) The example of the car is a particularly extreme one, since in the case of a new car the registration which is necessary for a test drive is generally accompanied by a diminution in value, which is estimated in the literature on the subject to be of approximately 20% and which means that the vehicle is subsequently regarded as a used car. (25)

47. Any traces left on the goods from testing cannot in principle (26) be treated in the same way as traces from use. They are traces which may also appear as the result of a test on the premises outside the scope of distance selling and do not as a rule result in an obligation to pay compensation provided there is no damage. In each case, it depends on the characteristics or the nature of the respective goods whether the value has changed through testing or use and whether (and at what price) the product can still be sold after it has been returned. (27) The inherent risk of a diminution of value when goods are purchased in a shop generally lies with the seller, who will in many cases provide a demonstration item or demonstration equipment. A feature of the structurally different situation of distance selling is that this risk does not arise prior to sale, but occurs after sale and delivery of the goods.

48. The main aim of the right of withdrawal under Directive 97/7 is to enable consumers to test goods ordered by distance selling without charge. (28) This is clearly reflected in the national provision at issue in the present case through the second sentence of Paragraph 357(3) of the BGB. (29)

49. In practice, it might in any case often be difficult to draw the line between testing on the one hand and use on the other. (30) Presumably, in many cases there cannot be any very obvious line, but a significant grey area, (31) which requires the circumstances of the individual case to be assessed. It will be necessary to determine in the particular situation of distance selling on which side – the supplier or the consumer – the risk inherent in this grey area is to be imposed under Directive 97/7. If it were to be the case that compensation for use was compatible in principle with Directive 97/7, it could typically be expected to be disputed between the parties whether or not use has actually occurred. (32) The problem would presumably hinge on the burden to produce evidence and the burden of proof. Within the abovementioned grey area, the burden of proof would be particularly heavy, on whichever side it might rest. (33)

50. However, the situation set out in the question referred for a preliminary ruling clearly differs from this typical problem area. The question referred appears to refer in particular to cases not only where the consumer has done at home what had not previously been possible when purchasing by means of distance selling in the absence of a visit to the shop – inspecting, trying on or trying out the goods – but where use in the sense of ‘availing oneself of the goods’ has clearly taken place. It can be inferred from the description of the facts of the case that the referring court clearly takes the view that the consumer availed herself of and used the laptop computer, and did more than try it out. For example, the referring court expressly observes that it is to be presumed that the applicant (merely) used the computer for its intended purpose. Only in one place in the order for reference do the words chosen by the referring court give matters a different complexion, where mention is made of the ‘period of benefit’, which in my view could not be treated in the same way as actual use.

51. I do not consider that the circumstances of the main proceedings represent a typical example of a dispute regarding compensation for use under Directive 97/7. On the contrary, I believe that such an example is, instead, atypical and is above all due to the particular way in which the directive is transposed into national law, which goes beyond the minimum requirements laid down in the directive for certain scenarios and provides for a very long or indefinite right of withdrawal period. It is evident that there is a considerable potential for benefit where a longer, graduated, period is involved. (34)

52. However, the distinction between ‘testing’ and ‘use’ is not sufficient in itself. The concept of ‘use’ must also be analysed. Is it a matter of actual use (in hours or days) or is the possibility of use sufficient (time between receiving and returning the item)? Can mere possession of the goods during the course of the withdrawal period constitute use which is liable for compensation (35) (which virtually amounts to a subsequent rental charge)? Should then any actual use be compensated (which also virtually amounts to a subsequent rental charge) or only use which has left traces of wear? In my view, ‘compensation for use’ can – in very rough terms – be seen to equalise two fundamentally different, but closely related, asset positions. On the one hand, it can be the equalisation of the benefit which the consumer has obtained through use (compensation for use). On the other hand, the compensation can also be intended as indemnification for damage arising through use (compensation for deterioration).

53. Because ‘compensation for use’ is at issue, the question must also be asked how these two concepts relate to each other. A provision such as the German rule appears to presuppose a diminution of value through any form of use as well as the mere possibility of use. It is also clear from the documents before the Court that according to national case-law the compensation to be paid is not based on the actual use (for example, according to the number of days or hours), but with reference to any possible use of the item in relation to the time of benefit (36) (which evidently means the period of possible use). A general calculation is therefore made on the basis of factors relating to time/value ratios.

54. I would suggest that considerable problems of understanding may arise from a schematic point of view if the concepts of ‘compensation for use’ and ‘compensation for deterioration’ are not separated in the debate on ‘compensation’.

55. The referring court appears to adopt the abovementioned concept of compensation for use, (37) since it defines the benefits under Paragraph 100 of the BGB as the fruits of an item and the advantages that the use of the item affords. (38) Its question thus seeks to ascertain whether the applicant has to pay a kind of ‘rental charge’ for the use of the computer over a period of months, stemming from the fact that she had the item available for use whilst the supplier could not have it available in the same period.

56. Were the Court to rule that a national provision on compensation for use of the goods supplied was compatible with Directive 97/7, it would inevitably be necessary sooner or later to answer questions such as the one raised here from a Community law perspective.

57. Lastly, I would like to point out that quite irrespective of the question how the specific meaning of compensation for use is to be delimited under Community law, regard must be had to the matter of damages in any analysis. Damages may always be relevant whenever use going beyond a possible diminution of (time) value has resulted in damage occurring. Even though damages are not at issue in the main proceedings, it is necessary later to examine briefly, on schematic grounds, how such an issue should be addressed. (39)

C – The stages of analysis resulting from the question referred

58. The question referred concerns Article 6(1) and (2) of Directive 97/7. (40) Under the first sentence of the first subparagraph of Article 6(1) of Directive 97/7, withdrawal from a distance contract within the prescribed period may not be subject to a penalty. The second sentence of the first subparagraph of Article 6(1) of Directive 97/7 provides that 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. Under Article 6(2) of Directive 97/7, in the event of withdrawal the supplier (41) is obliged to reimburse the sums paid by the consumer free of charge. It is then reiterated that 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. Furthermore, the wording of Article 6 of Directive 97/7 does not offer any specific indication as to the question of compensation for use. (42)

59. In order to answer the question referred, it must be determined, first of all, whether compensation for the use of the consumer goods supplied comes under the concepts of ‘penalty’ or ‘charge’ within the meaning of Article 6 of the directive and is not, for that reason alone, compatible with Directive 97/7, as it does not represent the direct cost of returning the goods. Neither concept refers to the law of the Member States as regards its content and its scope.

60. The Court has consistently held that the need for uniform application of Community law and the principle of equality require that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision and the purpose of the legislation in question. (43)

61. The concepts to be interpreted in the present case are therefore to be understood as Community law concepts and are to be given an autonomous interpretation.

62. In the event that such compensation should fall neither under the concept of penalty nor under the concept of charges, it would then be necessary to establish whether the Member States have the right on the basis of the last phrase of the 14th recital in the preamble to Directive 97/7 independently to make provision for compensation of the kind which is at issue in the main proceedings.

D – Does compensation come under the concept of penalty and is it not therefore compatible with Directive 97/7?

63. The concept of penalty, which is to be given an autonomous interpretation, (44) is not defined in Directive 97/7. In my opinion, a penalty in the narrow sense means a payment which has no purpose other than punishment. This would also include fines or contractual penalties. (45) There is nothing to suggest that compensation could be regarded as a penalty in the narrow sense. The concept relates to compensation for use and thus relates to a specific purpose which is distinct from punishment.

64. A somewhat broader understanding of the concept of penalty, which I advocate in the present case, could also include charges, in particular charges for withdrawal. It could also encompass general compensation or damages which do not relate to any specific damage or any specific use, but are fixed on a generalised basis. (46) Whilst their purpose is not to punish, they are not, however, calculated by reference specifically to that other purpose and could therefore be punitive in nature. However, in my view, compensation which relates to actual use and is calculated on that basis should not be subsumed under the concept of penalty.

65. Compensation such as that claimed in the main proceedings could come under the concept of penalty only if that concept were given an extremely broad interpretation and were regarded as an umbrella concept for all charges actually incurred (it remains necessary to consider below (47) whether compensation can actually come under the concept of charges), the payment of which the consumer might feel to be punitive and the effect of which could therefore be that the consumer waives his right of withdrawal. Such a broad interpretation would mean that the concept of charges would be subsumed almost entirely within the concept of penalty. However, there is nothing in the wording of the directive to suggest that this is the case.

66. In my opinion, compensation cannot therefore be understood as a penalty.

E – Does compensation come under the concept of charges and is it, for that reason, incompatible with Directive 97/7?

67. It must be ascertained whether compensation comes under the concept of costs or charges (hereinafter together referred to, save where the context otherwise requires, as ‘charges’) contained in the second sentence of the first subparagraph of Article 6(1) and in Article 6(2) of Directive 97/7, which is to be given an autonomous interpretation. (48)

1. The concept of charges in Directive 97/7 – Interpretation based on the wording and the sentence structure

68. The directive does not contain any explicit definition of the concept of charges (49) and it is not clear that a general definition, or at least a definition which might be transposed to the present case, of this concept might exist in Community law. (50) However, the second sentence of the first subparagraph of Article 6(1) and Article 6(2) of Directive 97/7 make clear that concept of charges relates to charges ‘that may be made to the consumer because of the exercise of his right of withdrawal’. It is permitted to impose such charges on the consumer returning the goods under the directive only for the ‘direct cost of returning the goods’. (51) This wording and the reference to ‘the only charge that may be made to the consumer’ show that in addition to this ‘direct cost of returning the goods’ the directive assumes that further charges may arise; those, however, may not be charged to the consumer.

69. The wording of the directive does not limit these further charges to contractual charges, that is to say, charges arising in connection with the formation of the contract, but they extend to charges ‘that may be made to the consumer because of the exercise of his right of withdrawal’. It can be inferred from the fact that in Article 6(1) and (2) the directive refers to the ‘direct cost of returning the goods’ that there may also be ‘indirect costs’, which also suggests that a broad interpretation should be given to the concept of costs and charges within the meaning of Directive 97/7. This is also suggested by the fact that under Article 6(1) and (2) the charges are made ‘because of’ the exercise of the right of withdrawal. There is nothing in the wording to imply that compensation for use of the goods supplied cannot come under the concept of charges within the meaning of Directive 97/7. (52)

70. As an interim conclusion, the interpretation of the second sentence of the first subparagraph of Article 6(1) and Article 6(2) of Directive 97/7 on the basis of the wording and the sentence structure does not produce a clear answer to the question whether compensation is covered by the concept of charges in that directive. However, it can already be stated that schematic arguments suggest that the concept of charges within the meaning of that directive is to be given a broad interpretation.

2. The concept of charges in Directive 97/7 – Teleological and schematic approach

71. In my opinion, a teleological approach supports a broad interpretation of the concept of charges which includes the compensation for use at issue in the present case. It follows from the regulatory aim of Directive 97/7, as it will be shown, that no provision is made for such compensation under the directive in its present version. (53)

72. The spirit and purpose of the provisions of Article 6 of Directive 97/7 on the right of withdrawal of consumers in respect of distance contracts (54) suggest that the concept of charges should be given a broad interpretation which includes compensation for use. The 14th recital in the preamble to Directive 97/7 is particularly informative in this regard. It stresses that the question whether the right of withdrawal is to be regarded as effective in protecting the rights of consumers depends in particular on the financial consequences connected with the assertion of that right. Specifically, the recital states that ‘if this right is to be more than formal, the costs, if any, borne by the consumer when exercising the right of withdrawal must be limited to the direct costs for returning the goods’.

73. The concept of ‘costs’ used here is to be understood in the overall context of the sentence not as a concept with a narrow interpretation, but as a concept with a broad interpretation. It would make no sense to establish a connection between financial charges and the efficacy of the right of withdrawal, but then only to legislate for a narrowly defined type of financial charge.

74. Compensation for use, of the kind provided for under German law, constitutes a financial charge which may impair the functionality and efficacy of the right of withdrawal. (55) As is clear from the documents before the Court, its calculation is intended to indemnify a period of (possible) use, (56) which is identical to the withdrawal period. The duty to provide compensation would therefore be the price to be paid for withdrawal. (57) The obligation to pay compensation is thus imposed because of the exercise of the right of withdrawal, contrary to Article 6(1) of Directive 97/7.

75. As I have already emphasised elsewhere, (58) consideration must be given in each case to how the claim for payment of compensation for use operates in practice. (59)

76. In my opinion, there is good reason to assume that it would impair or even undermine the aim pursued by the Community legislature in adopting Directive 97/7 if the consumer had to pay the supplier compensation for use of the item in the event of withdrawal.

77. In particular, the structural risk of a possible (legal) dispute as to whether the consumer has inspected the item only as to its suitability for his purposes or has also derived benefits from it (and, if so, what benefits) (60) could deter the consumer from exercising his rights. First, it could deter him in practice from taking the precaution of actually inspecting the goods before returning them, for example by tearing a protective plastic film. An intact protective plastic film is clear evidence of non-use, but it also prevents the goods from being inspected and tested. Secondly, it could deter him from withdrawing from the contract if he finds that the goods are not as he had imagined or are not suitable for his needs. In these circumstances, the consumer’s right to be able to inspect the goods after the contract has been concluded would be reduced to a merely formal right, in contravention of the 14th recital in the preamble to Directive 97/7. This would be contrary to the spirit and purpose of Directive 97/7.

78. Lastly, it should be mentioned that the obligation of mutual reimbursement referred to in the written observations and in the oral procedure (61) may sound balanced in theory, but in practice appears to relatively worthless to the consumer, except in the case of a very high purchase price, where the interest return over the withdrawal period could produce a considerable sum.

79. In the light of the foregoing, I take the view that in the context of Directive 97/7 compensation for use can be subsumed under a broad concept of charges. If compensation thus comes under the concept of charges contained both in the second sentence of the first subparagraph of Article 6(1) and in Article 6(2) of Directive 97/7, an obligation to pay it cannot be imposed on the consumer because it is not included in the direct cost of returning the goods.

3. A detailed analysis of the concept of distribution of risk underlying Directive 97/7 supports the interpretation adopted thus far

80. The distribution of risk in the event of withdrawal from a contract for goods is thus in favour of the consumer, for whom no procedural uncertainties (62) or financial charges should arise by virtue of his withdrawal.

81. Such a view of the distribution of risk between supplier and consumer under Directive 97/7 is consistent with its intention to promote distance selling (63) having due regard to the aim of a high degree of consumer protection, as expressed in several of the recitals in the preamble to the directive. Particular mention should be made in this regard of the recitals concerning the aims of completing the internal market, (64) new information technologies, (65) and consumer protection. (66) The willingness of consumers to participate in the distance selling structure is promoted through the directive because the specific problems linked with that market are reduced for the benefit of consumers. (67)

82. It is true that the interests of the supplier are adversely affected if the concept of charges is interpreted in the sense just proposed, that is to say, he may not claim any compensation for use of consumer goods until withdrawal from the contract. This applies in particular where the goods lose their value to the supplier, even if they are returned within the shortest possible period of seven working days. (68) The Community legislature therefore made provision in Article 6(3) of Directive 97/7 for full exclusion from the right of withdrawal in certain instances, for example in the case of products personalised to the customer’s specific wishes or in the case of perishable goods. (69) In the case of such goods, the consumer’s right of withdrawal without the obligation to pay compensation would seriously impair the supplier’s interests if the concept of charges were to be interpreted in the sense just proposed. The supplier could be deterred from conducting any distance selling transactions at all. However, that is not in keeping with the intention of the legislature, which wishes to promote distance selling transactions, in particular in the interest of consumers. (70)

83. The supplier still has the option, in order to cover the risk that in the individual case he may actually be faced with a withdrawal following and despite use and may not claim any compensation, of using the pricing approach of a mixed calculation which includes a percentage to allow for returned goods. (71)

84. In addition, Directive 97/7 contains a protection mechanism to safeguard the interests of the supplier, who naturally wishes to avoid a diminution in value, in the form of a time sequence with accompanying time-limits. The first sentence of the first subparagraph of Article 6(1) of Directive 97/7 specifies that the duration of the withdrawal period is ‘at least seven working days’. After the expiry of this relatively short withdrawal period, the brevity of which has generally been retained by the Member States when implementing the directive (seven working days or 14 calendar days is common (72) ), the supplier ceases to bear the risk in principle. The directive thus sets a reasonable time period during which the supplier bears the risk of any financial consequences of withdrawal.

85. Lastly, it should be mentioned in passing that both the Commission in a current proposal for a directive (73) and the Draft Common Frame of Reference (‘DCFR’ (74) ) for a uniform regulation of European private law (75) propose arrangements which are different to some extent. The Commission proposal states that ‘the consumer shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to ascertain the nature and functioning of the goods’. (76) The intention is thus different in substantive terms from the compensation for diminution of value currently calculated on a pro rata temporis basis under German law. (77) In the chapter relating to contracts, the DCFR also lays down rules governing the right of withdrawal (Articles II.-5:101 to II.-5:202). In Article II.-5:201(1), read in conjunction with Article II.-5:201(3), provision is made for consumers in distance contracts to have a right of withdrawal within the basic withdrawal period of 14 days, which is uniform across the Community. (78) Article II.-5:105(3) of the DCFR governs matters of compensation for use. Compensation for inspection and testing is expressly ruled out under Article II.-5:105(3) of the DCFR, but under Article II.-5:105(4) of the DCFR the consumer is expressly required to pay compensation in the case of normal use, (79) the obligation to produce evidence and the burden of proof appearing to lie with the seller. (80) The ‘Acquis Principles’ (Principles of the Existing EC Contract Law) (81) also contain similar provisions. (82) It should be noted that these works and legislative proposals are based on a different concept of compensation for use than the exclusion relating to the bearing of costs under Directive 97/7. Apart from the fact that in my view they lead to complex problems of distinguishing between inspection or testing and use, which are detrimental to legal certainty and can ultimately mean that purchasing by distance selling is less attractive to consumers, they are merely proposals and cannot assist in the interpretation of the directive in force.

4. Failure to fulfil the duty to provide information and the consequences of such failure

86. Only if the supplier fails to fulfil his obligations under Article 5 of Directive 97/7 does his risk extend over time. This reflects the legislature’s assessment that in such cases the supplier’s interest is less worthy of protection than the consumer’s interest and consumer protection. However, even this extension over time of the risk, which the supplier can address simply by complying with the obligations under Article 5 of Directive 97/7 in his own interest, is limited under the directive. Under the third subparagraph of Article 6(1) of Directive 97/7 a period of three months acts as the limitation. (83)

87. With the three-month period, Directive 97/7 expressly fixes a time-limit beyond which the right of cancellation may not be exercised even if no information has been supplied concerning that right. (84) Furthermore, that three-month period (85) is not established as a minimum period, but as a precisely defined period. It should be noted that, in Article 14, Directive 97/7 does contain a provision relating to what it terms ‘minimal clauses’. Under that provision, Member States may introduce or maintain, in the area covered by Directive 97/7, more stringent provisions compatible with the Treaty. This is, however, on the condition that they ensure a higher level of consumer protection. (86) If a measure is adopted at national level which derogates from the directive as regards the three-month period, this cannot influence the interpretation of the directive. Consequently, that point applies to a provision such as the German rule at issue, which, as far as can be seen from the documents before the Court, dispenses with any time-limit on the right of withdrawal if due notice is not given.

5. May the possibility of abuse by individuals lead to rules which are detrimental to all consumers?

88. The arguments put forward by the Commission (87) that in many cases the threshold for unjust enrichment could be exceeded, for example where goods are ordered in distance contracts for a specific occasion and are returned and the contract is withdrawn from after the goods have been used for the occasion, (88) cannot be relied on in order to introduce general rules on charges which are detrimental to all consumers.

89. As was explained above, the directive does not allow any further scope for national rules on charges which are detrimental to consumers and which do not concern the return of goods as expressly referred to in the directive. In this respect, the rules laid down in Directive 97/7 are to be regarded as exhaustive.

90. In addition, it should be pointed out that the fear of abuse by individuals must not generally result in the protection of rights guaranteed under Community law being restricted for everyone. In accordance with the case-law of the Court, (89) the application of a national rule intended to prevent abuse must not prejudice the full effect and uniform application of Community law in the Member States. In particular, the objectives pursued by a particular piece of Community legislation, for example a directive, must not be compromised. (90)

91. It cannot be denied that in genuine cases of abuse (and cases where damage arises (91) ) a form of action should be available, as required by the principle of equivalence. In such cases, the supplier can nevertheless obtain reparation without having to rely on a provision which is detrimental to all consumers. In my opinion, specific cases of abuse are not covered by the concept of charges in Directive 97/7 and can therefore be resolved using general rules of civil law, in particular the relevant national law on unjust enrichment. Similarly, cases where actual damage has occurred can be settled using the relevant national law.

92. It is uncertain, however, what this means for cases where the consumer has not been given notice or has not been given proper notice of his right of withdrawal by the supplier. In such cases, it must be possible that withdrawal from the contract will often not occur until after the goods have been used for a time, that is to say, until information on the right of withdrawal has been provided. In the absence of information, the consumer could not be aware that he should restrict his dealings with the product to testing it, and should not use it. In that situation, should the consumer be obliged, as it were, to ‘pay’ for the extended right of withdrawal which had been designed to protect him by, as a rule, having to pay compensation for the use of the consumer goods supplied?

93. It should be noted in this regard that for cases such as the present case, in which it has been established that the supplier has failed to fulfil the duty to provide information, (92) an action based on the law on unjust enrichment does not appear to be possible as, taking into account the assessment made by the legislature, (93) which imposed a time-limit on the corresponding risk of the supplier, I consider that a financial charge on the consumer is also precluded in such cases. It would not be compatible with the aim of consumer protection in the directive for consumers to have to pay, in the event of a breach of duty by the supplier, for the extended protection through a charge for use. This amounts to a form of compulsion not to withdraw from the contract. (94) That would be contrary to the aim of consumer protection and the aim of promoting distance selling underlying Directive 97/7. It must be accepted that, for example, cases of excessive use, (95) where the duty of information is also breached, should be assessed differently from a situation where the supplier duly fulfils the duty to provide information.

94. It should be pointed out in passing that the DCFR (96) adopts a similar approach to the breach of the duty to provide information by the supplier. As has already been explained, compensation for inspection and testing is expressly ruled out, but the consumer is, however, required to pay compensation in the case of normal use. (97) None the less, it is interesting that this applies only to withdrawal within the normal withdrawal period, which is generally 14 days. On the other hand, in cases where the consumer has not received notice or has not received adequate notice of his right of withdrawal, payment of compensation is expressly ruled out by Article II.-5:105(4) of the DCFR. The reasoning underlying the provision shows that in cases where the duty to provide information is infringed the consumer needs special protection in order to compensate for the lack of information.

95. Furthermore, it should also be noted for the sake of completeness that the Court has previously held that if the consumer is not aware of the existence of the right of cancellation, he will not be able to exercise that right. (98) This is also the case if he is aware of it in principle, but the duty to provide information is not complied with in full. Incomplete or misleading information can easily mean that the consumer fails to exercise his right because he does not understand it correctly.

96. A further limit on the right of withdrawal without the need to pay compensation appears to exist where damaged goods are returned. In such a case, the general rules of the Member State in question on compensation for damage apply. I would add that it is not contrary to the directive, in my view, to give the consumer general information in order to ensure a certain duty of care.

6. Distinguishing the case-law in Schulte and Crailsheimer Volksbank

97. Lastly, it should be pointed out that my interpretation of the consequences of withdrawal in the context of Directive 97/7 with regard to distance contracts is not precluded by the judgments in Schulte and Crailsheimer Volksbank , (99) in which it was held with regard to the cancellation of a secured credit agreement falling within the scope of Directive 85/577 that not only the repayment of the amounts received but also the obligation to pay interest at the market rate was compatible with that directive, (100) although such interest could be regarded as a kind of compensation in a broad sense. That was a special case of a credit agreement and different regulatory contexts (101) and different directives (102) with different detailed provisions; (103) it should be noted in particular that the rules on the legal consequences of withdrawal are formulated differently in the two directives. In Directive 97/7, Article 6(1) and (2) lays down detailed rules governing the legal consequences of withdrawal. As has already been stated, penalties in this regard are prohibited and charges may be made to the consumer only in extremely limited circumstances. There are no such stipulations in Directive 85/577. Article 5(2) of that directive, which governs the consequences of the exercise of the right of withdrawal, (104) states only in very general terms that ‘the giving of the notice shall have the effect of releasing the consumer from any obligations under the cancelled contract’. It must therefore be stated that as regards the provisions of the directive to be interpreted in Schulte and in Crailsheimer Volksbank there were no provisions similar to those in the present case on the allocation of risk in relation to charges.

98. Consequently, Directive 97/7 is to be interpreted as meaning that no restoration of the status quo ante within the meaning of the judgments in Schulte and Crailsheimer Volksbank is required for its application.

7. Conclusion

99. My overall conclusion is therefore that a provision of national law which generally provides that, in the case of a revocation by a consumer within the revocation period, a seller may claim compensation for the value of the use of the consumer goods delivered is not compatible with Article 6(1) and (2) of Directive 97/7, read in conjunction with the 14th recital in the preamble to that directive.

F – For the sake of completeness, in the event that it is decided that compensation is not covered by the concepts of penalty or charge under Directive 97/7: does a provision on compensation fall within the regulatory discretion of the Member States?

100. In the event that the Court were not to share the conclusion set out in the preceding paragraph and were to conclude that the compensation for use at issue is not covered by the concept of charges under Directive 97/7, I would like to add the following further arguments, put forward merely as a precaution.

101. The last phrase of the 14th recital in the preamble to Directive 97/7 states that ‘it is for the Member States to determine the other conditions and arrangements following exercise of the right of withdrawal’. Can it be inferred that a national provision on compensation for use such as the rule at issue is to be left to the decision-making discretion of the Member States?

102. As has already been explained, (105) the German Government relies on the last part of the 14th recital and argues that Directive 97/7 does not preclude the German provision in question. The Austrian Government also puts forward similar arguments and thus defends comparable Austrian rules. (106) Both take the view that the payment of compensation for use is not prohibited by Directive 97/7, but is subject to the discretion of the Member States.

103. In addition, as has already been mentioned, (107) the Commission’s observations follow similar lines. The Commission considers that the national provision in question does not fall within the concept of charges. The payment is a consideration for the fact that the consumer has used the goods acquired in a distance contract for a certain time. As has already been recognised in other areas of Community law, (108) including in the field of distance selling, the Member States can take steps to ensure that the protection of the rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them; rules governing the recovery of sums paid though not due are therefore, in principle, a matter for the legislature of the Member State concerned.

104. In my opinion, these arguments on the decision-making discretion of the Member States with regard to a national provision on compensation for use do not stand up to examination.

105. It must be observed, first of all, that, as has already been explained, the fear of abuse by individuals may not generally result in the protection of rights guaranteed under Community law being restricted for everyone. (109) For that reason alone, a provision such as the one at issue cannot fall within the discretion of the Member States.

106. Secondly, it must be pointed out that, in achieving the aims of the internal market, Directive 97/7, which is relevant in the present case, as is clear from the recitals in the preamble to the directive, seeks to promote distance selling having regard to the aims of optimum consumer protection. (110) The purposes thus pursued may not be undermined. As was made clear above, (111) the provisions of the directive on the right of withdrawal include carefully worded rules on the distribution of risk, which assume in particular that the financial charges imposed on consumers as a result of the exercise of right of withdrawal must be limited. Even if, contrary to my opinion, compensation were not to fall under the concept of charges, the Member States are not free to regulate the matter as they wish. In particular, they would not be entitled to rely only on the last phrase of the 14th recital in the preamble and in doing so, for example, to disregard the first phrases of that recital.

107. It should thus be recalled, thirdly, that the consumer is not able actually to see the product or ascertain the nature of the service provided before concluding the contract (first phrase of the 14th recital). As regards the supply of goods, the consumer’s option of withdrawal balances the disadvantage of not being able, in distance contracts, to see the goods displayed in business premises and, if necessary, to try them on or try them out. The right of withdrawal which is based on that disadvantage would become meaningless and merely formal if compensation for temporary use could be claimed for the consumer’s relatively short testing periods of one to two weeks laid down by Directive 97/7. (112) The consumer would run the risk, by opening the original packaging (a necessary step in order to inspect and test the goods), of exposing himself to an allegation of use going beyond testing. (113) For those reasons, it is in keeping with the directive, in my view, not to provide for any compensation for use for the normal withdrawal period. Because the three-month period is not intended to place the consumer in a worse position, but only to make good the deficiencies which the supplier has caused by failing to fulfil his duties to provide information under Article 5 of Directive 97/7, it could hardly be acceptable to allow a different rule to apply in the case of this longer period of potential use.

108. Fourthly, I would like to point out that it is expressly stated in the 14th recital in the preamble to Directive 97/7 that the consumer’s right of withdrawal from distance contracts is intended to be more than a formal right. However, a whole series of practical problems which a provision on compensation is liable to entail would be likely in fact to make this right of withdrawal into a principle that could never be applied in practice. In addition to the abovementioned (114) evidential problems, (115) it should be mentioned that when consumers conclude a contract they cannot generally know to what extent claims for compensation might be made against them. The associated risk could dissuade them from exercising their right to withdrawal in order to avoid a dispute, which entails unpleasantness and costs money, time and energy. Moreover, that risk is also likely to make distance contracts less attractive to consumers, which would not be in keeping with Directive 97/7. Not only is the wider range of choice an advantage of distance selling for consumers; that advantage may also represent savings in terms of time and journeys.

109. For a distinction between the present situation and the situation on which the judgments in Schulte and Crailsheimer Volksbank were based, I refer to the arguments set out above. (116)

110. In the light of all of the foregoing, I consider that a provision of national law, such as the rule at issue in the main proceedings, which provides that, in the case of a revocation by a consumer within the revocation period, a seller may claim compensation for the value of the use of the consumer goods delivered also does not fall within the regulatory discretion of the Member States on the basis of the last phrase of the 14th recital in the preamble to Directive 97/7.

VII – Conclusion

111. On those grounds, I suggest that the Court answers the question referred by the Amtsgericht Lahr as follows:

Article 6(1) and (2) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts is to be interpreted as precluding a provision of national law which generally provides that, in the case of a revocation by a consumer within the revocation period, a seller may claim compensation for the use of the consumer goods delivered.

(1) .

(2)  – OJ 1997 L 144, p. 19.

(3)  – See Article 2(4) of Directive 97/7.

(4)  – See Article 2(1) of Directive 97/7.

(5)  – To transpose Directive 97/7 into German law, first of all the Fernabsatzgesetz (Law on distance selling; BGBl. I, p. 897) was adopted. It entered into force on 30 June 2000 and was integrated into the BGB as part of a modernisation of the law of obligations on 1 January 2002 (BGBl. 2001 I, p. 3138). With regard to the reappraisal of the situation in Germany before and after the entry into force of the Fernabsatzgesetz and after the entry into force of the Schuldrechtsmodernisierungsgesetz (Law modernising the law of obligations), see Hellwege, P., Die Rückabwicklung gegenseitiger Verträge als einheitliches Problem , 2004, p. 60 et seq. With regard to the situation in Germany before the entry into force of the Fernabsatzgesetz, see, inter alia, ‘The distance selling directive and German law’, in Stauder and Stauder (eds), La protection des consommateurs acheteurs à distance , Zürich, 1999, p. 127 et seq.

(6)  – BGB‑Informationspflichten-Verordnung, in the version published on 5 August 2002 (BGBl. I, p. 3002), last amended by the Regulation of 4 March 2008 (BGBl. I, p. 292).

(7)  – Amongst other things, it was not pointed out that the withdrawal period did not commence until the notice of the right of withdrawal was received and that under Paragraph 357(3) of the BGB no compensation is payable in the case of deterioration of the goods which is due solely to the testing of the item.

(8)  – Under Paragraph 357(3) of the BGB, the consumer must pay compensation for any deterioration of the goods as a result of use for the purpose for which they were intended only if he has been informed in writing of this legal consequence and of a means of avoiding it. In the present case, the defendant merely sent an ineffective declaration of the consequences of withdrawal and thus it cannot claim any compensation. In so far as the applicant could prove that the computer’s defect was the result of a fault which was already present at the time when it was delivered in the context of the contract of sale, she could demand reimbursement of the purchase price under Paragraphs 434, 437(2) or (3), 440 or 281 of the BGB respectively, in each case read in conjunction with Paragraph 346 of the BGB. In that case too, the defendant’s objection regarding the return of the benefits obtained could be valid.

(9)  – This view also appears to be shared by Micklitz, H.-W., ‘La directive vente à distance 97/7/EC’, in Stauder and Stauder (eds), op. cit. (footnote 5 above), p. 23 et seq., p. 37.

(10)  – For further comments on this argument, see point 103 of this Opinion.

(11)  – See, inter alia, Case 33/76 Rewe-Zentralfinanz and Rewe-Zentral [1976] ECR 1989, paragraph 5; Case 68/79 Just [1980] ECR 501, paragraph 25; Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357, paragraph 43; Case C‑261/95 Palmisani [1997] ECR I‑4025, paragraph 27; and Case C‑34/02 Pasquini [2003] ECR I‑6515, paragraph 56.

(12)  – Case C‑404/06 [2008] ECR I‑0000.

(13)  – OJ 1999 L 171, p. 12.

(14)  – See my Opinion in Quelle (cited in footnote 12 above), point 67.

(15)  – Quelle (cited in footnote 12 above), paragraph 43 and operative part. See, inter alia, Ofner, H., ‘Kein Nutzungsentgelt für den Verkäufer bei Austausch der nicht vertragsmäßigen Sache’, Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung , 2008, p. 57 et seq., and Pardo Leal, M., ‘Derecho del vendedor a exigir al consumidor una indemnizac ión por el uso de un bien en caso de sustitución de bienes que no son conformes (Sentencia “Quelle AG” de 17 de abril de 2008, asunto C-404/06)’, Revista electrónica de Derecho del Consumo y de la Alimentación , 2008, No 18, pp. 29-33.

(16)  – Case C‑350/03 [2005] ECR I‑9215.

(17)  – Case C‑229/04 [2005] ECR I‑9273.

(18)  – OJ 1985 L 372, p. 31.

(19)  – Schulte (cited in footnote 16 above), paragraphs 92 and 93, and point 3 of the operative part; Crailsheimer Volksbank (cited in footnote 17 above), paragraphs 48 and 49, and point 2 of the operative part. Advocate General Léger gave his view on the payment of interest at the market rate in his Opinion in Crailsheimer Volksbank . In points 71 and 72 of the Opinion, he stated that Directive 85/577 does not generally preclude a national provision requiring the payment of statutory interest in the event of cancellation of a credit agreement. Since cancellation has the effect of making the agreement void from the outset, it seems that the status quo that existed before the conclusion of the agreement should be restored. The borrower being deemed never to have benefited from the loan, it is only reasonable that he should repay not only the sums received under the agreement but also interest, that is to say, the income that these sums would have generated if they had remained at the disposal of the lending institution. Lastly, however, in relation to the specific case at issue, he concluded in point 75 et seq. that the bank cannot require the payment of default interest if it has not fulfilled its own obligations.

(20)  – Cited in footnote 12 above.

(21)  – Directive 1999/44. See point 38 of this Opinion.

(22)  – With regard to the importance of the different periods, see point 87 of this Opinion.

(23)  – The view outlined by Schinkels, B., ‘Fernabsatzverträge (§§ 312 b bis 312 d, § 241a, 355 ff. BGB)’, in Gebauer and Wiedemann (eds), Zivilrecht unter europäischem Einfluss , 2005, p. 209 et seq., paragraph 66, is correct.

(24)  – For this and other examples, see Schinkels, B., op. cit. (footnote 23 above), paragraph 67.

(25)  – See Arnold, A. and Dötsch, W., ‘Verschärfte Verbraucherhaftung beim Widerruf?’, Neue Juristische Wochenschrift , 2003, pp. 187-189, p. 187; Schinkels, B., op. cit. (footnote 23 above), paragraph 67; and Brönneke, T., ‘Abwicklungsprobleme beim Widerruf von Fernabsatzgeschäften’, Multimedia und Recht , 2004, pp. 127-133, p. 132. Arnold and Dötsch and Brönneke state that the reason for the national rules at issue laid down in the first and second sentences of Paragraph 357(3) of the BGB was the internet sale of a vehicle. At the same time, Brönneke points out that the diminution of value in such cases has nothing to do with deterioration, but is because of the aura of a new car and possibly certain discounting practices used by dealers to circumvent existing price-fixing arrangements.

(26)  – With the words ‘in principle’ I would like to point to the questions, which are acute in practice, of ‘proper’ or ‘careful’ use for testing purposes which it is not appropriate to examine in greater depth here, however, in the absence of relevant information in the main action.

(27)  – Thus, the distinction in the case of technical equipment may create particular difficulties because it does not necessarily show visible signs of wear even after lengthy use. On the other hand, there are goods where use for testing results in partial consumption, which is the case with printer cartridges for example. See Maderbacher, G. and Otto, G., ‘Fernabsatz: Vertragsrücktritt nur gegen Entgelt?’, Ecolex , 2006, pp. 117-119, p. 118.

(28)  – This is clear from the 14th recital in the preamble to the directive, which states that the consumer is not able actually to see the product or ascertain the nature of the service provided before concluding the contract and therefore provision should be made for a right of withdrawal from the contract. See also Mankowski, P., Beseitigungsrechte , Tübingen, 2003, p. 898.

(29)  – See point 10 of this Opinion.

(30)  – On weighing the interests at issue in the individual case, see Willhelm, R.G., Verbraucherschutz bei internationalen Fernabsatzverträgen , Hamburg, 2007, p. 137.

(31)  – With regard to this concept, see also Schinkels, B., op. cit. (footnote 23 above), paragraph 67.

(32)  – This is also pointed out by Neumann, N., Bedenkzeit vor und nach Vertragsabschluss , 2005, p. 393 et seq.

(33)  – It should be noted that according to the documents before the Court, the burden of proof under the German rules at issue rests on the supplier (see point 33 of this Opinion). However, according to academic writings, that does not seem to be clear (see Neumann, N., op. cit. (footnote 32 above), p. 393).

(34)  – It is undeniable that irrespective of the goods and the circumstances use by the consumer can take place for a short period. Prominent examples include festive clothing, furnishings and crockery which are ordered for a specific occasion and then returned, which should be classified as abuse in my opinion.

(35)  – This is ruled out, for example, by Rott, P., ‘Widerruf und Rückabwicklung nach der Umsetzung der Fernabsatzrichtlinie und dem Entwurf eines Schuldrechtsmodernisierungsgesetzes’, Verbraucher und Recht , 2001, p. 78 et seq., p. 80, and Willhelm, R.G., op. cit. (footnote 30 above), p. 138.

(36)  – See point 33 of this Opinion.

(37)  – See point 52 of this Opinion.

(38)  – See point 22 of this Opinion. See also the observations of the German Government referred to in point 33 of this Opinion.

(39)  – See points 91 and 96 of this Opinion.

(40)  – Incidentally, it is worth mentioning that in addition to these questions of interpretation of Community law a further perspective could be important to the referring court in interpreting national law: transposition into national law of the rights enjoyed by citizens under Community law must result in rights that are no less favourable than the corresponding rights derived from national law (see, to that effect, inter alia Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others [1983] ECR 2633, paragraph 23, and Case C‑231/96 Edis [1998] ECR I‑4951, paragraph 36). I believe that this should be pointed out, because it is mentioned in academic writings that through the rules at issue in the present case the national legislature treats a consumer who withdraws from a purchase made by means of distance selling worse than a person who is entitled to any other statutory right of withdrawal or a business seller in the case of withdrawal under the rules on selling in German law (see, for example, Mankowski, P., op. cit. (footnote 28 above), p. 891, and Neumann, N., op. cit. (footnote 32 above), p. 391 (‘different from the “normal” person who withdraws from a contract’)).

(41)  – Under Article 2(3), this means any natural or legal person who, in contracts covered by Directive 97/7, is acting in his commercial or professional capacity.

(42)  – See also Maderbacher, G. and Otto, G., op. cit. (footnote 27 above), p. 118.

(43)  – See, in particular, Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43.

(44)  – See points 60 and 61 of this Opinion.

(45)  – See also Micklitz, H.-W., op. cit. (footnote 9 above), p. 37.

(46)  – For example, general compensation, such as the deduction of 15% of the value of the goods provided for in the defendant’s general terms and conditions of business (see point 15 of this Opinion) may be regarded as a penalty.

(47)  – Point 68 et seq.

(48)  – See points 60 and 61 of this Opinion.

(49)  – In contrast with Directive 1999/44; for further details, see Buchmann, F., ‘Kein Nutzungsersatz beim Widerruf von Fernabsatzgeschäften?’, Kommunikation & Recht , 2008, p. 505 et seq., p. 508.

(50)  – Nor in the judgment, cited by the Commission at the hearing, in Joined Cases C‑392/04 and C‑422/04 i-21 Germany and Arcor [2006] ECR I‑8559, which addressed the question whether in the imposition of a licence fee in connection with ‘administrative costs’ the advance charging of a national regulatory authority’s general administrative costs over a period of 30 years is to be taken into account. In that judgment, the Court did not give a definition of the concept of charges or a definition which might be transposed to the present case. It merely stated, in paragraphs 28 and 29 of that judgment, that the concept of ‘administrative costs’ within the meaning of Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (OJ 1997 L 177, p. 15), which was at issue in that case, is to be construed as referring to work involved in implementing the licences and, according to the wording of that provision, as relating to the issue, management, control and enforcement of individual licences.

(51)  – In many Member States, the provisions adopted to implement Directive 97/7 provide that the costs of returning goods may be imposed on the consumer by contractual agreement. See Rühl, G., ‘Die Kosten der Rücksendung bei Fernabsatzverträgen: Verbraucherschutz versus Vertragsfreiheit’, Europäische Zeitschrift für Wirtschaftsrecht , 2005, pp. 199-202, p. 201. See also Knez, R., ‘Direktiva 97/7/ES Evropskega parlamenta in Sveta z dne 20. maja 1997 o varstvu potrošnikov glede sklepanja pogodb pri prodaji na daljavo’, in Trstenjak, V., Evropsko pravo varstva potrošnikov , GV Založba, Ljubljana, 2005, p. 111 et seq., p. 113.

(52)  – This view is evidently shared by Brönneke, T., op. cit. (footnote 25 above), p. 132, and Maderbacher, G. and Otto, G., op. cit. (footnote 27 above), p. 118.

(53)  – With regard to the studies and discussions in relation to the reformulation or comprehensive regulation of consumer rights, see point 94 of this Opinion.

(54)  – This right of withdrawal is rightly described by Allix, J., ‘La directive 97/7/CE: contrats à distance et protection des consommateurs’, Revue des affaires européennes , 1998, pp. 176‑187, p. 179, as a fundamental principle of the directive. See also Brönneke, T. (footnote 25 above), p. 127.

(55)  – Mankowski, P., op. cit. (footnote 28 above), p. 893, rightly argues that rescission charges and costs are to be seen as costs of withdrawal.

(56)  – See point 53 of this Opinion.

(57)  – See Mankowski, P., op. cit. (footnote 28 above), p. 892.

(58)  – See my Opinion in Quelle (cited in footnote 14 above), point 49.

(59)  – Unlike the situation in Quelle , the consumer’s right of withdrawal in the present case is not connected with a failure by the seller to fulfil a duty, but serves only to protect the person entitled to the right (see Hellwege, P., op. cit. (footnote 5 above), p. 74).

(60)  – See my preliminary considerations in points 45 to 57 of this Opinion. In this respect, it is not irrelevant if the supplier ultimately bears the burden to produce evidence and the burden of proof (see point 33 of this Opinion and footnote 33 above), which will not generally be known to the consumer.

(61)  – See point 33 of this Opinion.

(62)  – Maderbacher, G. and Otto, G., op. cit. (footnote 27 above), p. 118, put forward the positive argument that if it is recognised that Article 6(2) of Directive 97/7 specifically does not provide for a charge for use to be offset, problems of distinguishing between mere ‘test use’ and ‘actual use’ are avoided.

(63)  – See, in particular, the fourth recital in the preamble to Directive 97/7, which expressly states that ‘the introduction of new technologies is increasing the number of ways for consumers to obtain information about offers anywhere in the Community and to place orders’. The intention of promoting distance selling is also apparent in the third, sixth and seventh recitals in the preamble to the directive. Reference should also be made to various Commission communications on consumer policy, such as the communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions – Consumer policy strategy 2002-2006 (COM(2002) 208 final), p. 21 et seq. See also Micklitz, H.-W., op. cit. (footnote 9 above), p. 25.

(64)  – The directive was based on Article 100a of the EC Treaty (now, after amendment, Article 95 EC) and is thus aimed at the completion of the internal market (with regard to Article 100a of the EC Treaty or Article 95 EC as a legal basis see, inter alia, Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I‑11453, paragraphs 59 and 60). See also, in relation to Directive 97/7, Donnelly, M. and White, F., ‘The Distance Selling Directives: a time for review’, Northern Ireland Legal Quarterly , 56/2005, p. 200 et seq., pp. 200 and 204, and Schinkels, B., op. cit. (footnote 23 above), paragraph 7. Furthermore, in addition to the fourth recital, which has already been mentioned above (footnote 63) and refers to the need to avoid a detrimental effect on competition between businesses in the internal market, particular attention should be paid to the first three recitals in the preamble to Directive 97/7:

‘(1) … in connection with the attainment of the aims of the internal market, measures must be taken for the gradual consolidation of that market;

(2) … the free movement of goods and services affects not only the business sector but also private individuals; … it means that consumers should be able to have access to the goods and services of another Member State on the same terms as the population of that State;

(3) … for consumers, cross-border distance selling could be one of the main tangible results of the completion of the internal market, as noted, inter alia, in the communication from the Commission to the Council entitled “Towards a single market in distributionˮ; … it is essential to the smooth operation of the internal market for consumers to be able to have dealings with a business outside their country, even if it has a subsidiary in the consumer’s country of residence’.

(65)  – See the fourth recital in the preamble to Directive 97/7, already mentioned in footnote 63.

(66)  – The idea of consumer protection permeates most of the recitals in the preamble to Directive 97/7 more or less explicitly. The 19th recital makes reference particularly clearly to ‘optimum consumer protection’ and the fourth recital underscores the aim of approximating the consumer protection rules governing distance selling. Through the recitals, the aim of consumer protection is linked with the aim of completing the internal market (see Cremona, M., ‘The distance selling directive’, The Journal of Business Law , 11/1998, p. 613 et seq., p. 614).

(67)  – Schinkels, B., op. cit. (footnote 23 above), paragraph 8. See also Hörnle, J., Sutter, G. and Walden, I., ‘Directive 97/7/EC on the protection of consumers in respect of distance contracts’, in Lodder and Kaspersen (eds), eDirectives: Guide to European Union Law on E-commerce , Chapter 2, 2002, p. 11 et seq., p. 17.

(68)  – See Article 6(3) of Directive 97/7. See also the arguments put forward in the written observations submitted by the Belgian Government.

(69)  – Under Article 6(3) of Directive 97/7, contracts for the supply of goods made to the consumer’s specifications or clearly personalised or which, by reason of their nature, cannot be returned or are liable to deteriorate or expire rapidly are excluded in particular from the right of withdrawal. Contracts for the supply of audio or video recordings or computer software which were unsealed by the consumer and contracts for the supply of newspapers, periodicals and magazines are also excluded.

(70)  – See footnote 63 above.

(71)  – On the other hand, concentration on distance selling by the supplier, who in particular does not have to run a shop, entails cost savings (see Donnelly, M. and White, F., op. cit. (footnote 64 above), p. 201).

(72)  – Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee of 21 September 2006 on the implementation of Directive 97/7 (COM(2006) 514 final), point 7 and Annex IV.

(73)  – COM(2008) 614 final, 8 October 2008: Proposal for a directive of the European Parliament and of the Council on consumer rights, Article 17(2). The aim of this proposal for a directive is the uniform full harmonisation of the consumer acquis which have thus far been regulated differently in different directives; see also Terryn, E., ‘The Right of Withdrawal, the Acquis Principles and the Draft Common Frame of Reference’, in Schulze, R. (ed.), Common Frame of Reference and Existing EC Contract Law , 2008, p. 158 et seq., and Green Paper on the review of the consumer acquis , Brussels, 8 February 2007 (COM(2006) 744 final), p. 11.

(74)  – Von Bar, C. et al. (eds), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Interim Outline Edition; prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group) , Munich 2008.

(75)  – As regards the standing of this document, Schulze, R. and Wilhelmsson, T., ‘From the Draft Common Frame of References towards European Contract Law Rules’, European Review of Contract Law , 2008, pp. 154-168, point out that the DCFR has been drawn up by a network of researchers and forms a basis for discussion alongside other works and drafts to be included (Principles of European Contract Law – PECL – and Acquis Principles) for future European contract law rules. With regard to the Acquis Principles, see Schulze, R., ‘Die “Acquis-Grundregeln” und der Gemeinsame Referenzrahmen’, Zeitschrift für Europäisches Privatrecht , 2007, p. 731 et seq.

(76)  – Article 17(2), COM(2008) 614 final (cited in footnote 73 above).

(77)  – See point 53 of this Opinion.

(78)  – That period does not commence until the consumer has been informed of his right of withdrawal. According to Loos, M.B.M., ‘Review of the European consumer acquis’, Zeitschrift für Gemeinschaftsprivatrecht/European Community private law review/Revue du droit privé communautaire , 2008, pp. 117-122, p. 118, consumer associations had advocated a longer period in many cases while trade associations had supported a generally shorter period.

(79)  – However, this applies only to withdrawal during the normal withdrawal period, which is 14 days as a rule. On the other hand, for cases where the consumer is not or is not properly informed of his right of withdrawal, payment of compensation is expressly ruled out by Article II.-5:105(4) of the DCFR.

(80)  – See Loos, M.B.M., op. cit. (footnote 77 above), p. 119.

(81)  – With regard to the Acquis Principles, see, inter alia, Schulze, R., op. cit. (footnote 75 above).

(82)  – See, inter alia, Schulze, R., op. cit. (footnote 75 above), p. 902, Article 5:105.

(83)  – It should be noted that the three-month period may in certain circumstances be exceeded by a few days under the fourth subparagraph of Article 6(1) of Directive 97/7, namely if the information referred to in Article 5 of Directive 97/7 is supplied within this three-month period. In such a case the seven working day period referred to in the first subparagraph of Article 6(1) is to begin as from the moment the information is supplied.

(84)  – See also point 29 of the Opinion of Advocate General Poiares Maduro in Case C‑412/06 Hamilton [2008] ECR I‑0000 which has an equivalent analysis of the possibility of fixing periods in connection with the right of withdrawal under Directive 85/577. The time-limit on the right of withdrawal in the context of distance selling is in contrast with the indefinite nature of the right of withdrawal with regard to doorstep selling (see Case C-481/99 Heininger [2001] ECR I‑9945, paragraph 48).

(85)  – See Knez, R., op. cit. (footnote 51 above), p. 113.

(86)  – It is not for the present reference for a preliminary ruling to examine whether an extension of the three-month period actually guarantees such a higher level of protection or in practice counteracts it as a result of the longer period of use which will generally arise under national law (at the hearing the German Government confirmed that a withdrawal period extended following failure to fulfil the duty to provide information generally gives rise to use in the meantime, which would as a rule support the claim for compensation for use under national law).

(87)  – See the Commission’s arguments referred to in point 34 of this Opinion.

(88)  – For example, clothing for a special evening or a big screen for a certain event (for the example of a television ordered for a special football event, see Buchmann, F., op. cit. (footnote 49 above), p. 505, footnote 4 thereto). Withdrawal after excessive use is cited as an example by Schinkels, B., op. cit. (footnote 23 above), paragraph 63.

(89)  – Case C‑367/96 Kefalas and Others [1998] ECR I‑2843, paragraph 22, and Case C‑201/01 Walcher [2003] ECR I‑8827, paragraph 37.

(90)  – See Kefalas and Others (cited in footnote 89 above), paragraph 22, and Walcher (cited in footnote 89 above), paragraph 37.

(91)  – See point 96 of this Opinion.

(92)  – With regard to the referring court’s finding in this connection, see points 20 and 21 of this Opinion. It should also be noted that a failure to fulfil the duty to provide information in contravention of the directive appears to exist where the consumer is given notice of a possible obligation (which is contrary to the directive) to pay compensation for use in the event of withdrawal. Incomprehensible and excessively complex information (see Donnelly, M. and White, F., op. cit. (footnote 64 above), p. 213 et seq.) may also contribute to misleading the consumer. Article 4(2) of Directive 97/7 seeks to prevent this (see also Hörnle. J., Sutter, G. and Walden, I., op. cit. (footnote 67 above), p. 15).

(93)  – See points 86 and 87 of this Opinion.

(94)  – Mankowski, P., op. cit. (footnote 28 above), p. 892.

(95)  – With regard to the concept, see Schinkels, B., op. cit. (footnote 23 above), paragraph 63.

(96)  – See point 85 of this Opinion.

(97)  – See point 85 of this Opinion.

(98)  – See also Heininger (cited in footnote 84 above), paragraph 45, and Hamilton (cited in footnote 84 above), paragraph 33.

(99)  – See point 39 of this Opinion.

(100)  – With regard to the criticism of this case-law, in particular as regards the absence of more precise reasoning, see inter alia Hoffmann, J., ‘Die EuGH-Entscheidungen “Schulte” und “Crailsheimer Volksbank”: ein Meilenstein für den Verbraucherschutz beim kreditfinanzierten Immobilienerwerb?’, Zeitschrift für Wirtschaftsrecht – ZIP , 2005, p. 1985 et seq., p. 1986.

(101)  – The aims of the two directives at issue here are extremely different: in contrast with the aims of Directive 97/7, at issue in the present case, which relate both to consumer protection and to the internal market and in particular the promotion of distance selling (see point 81 of this Opinion), the sole intention of the Community legislature in adopting Directive 85/577 was to guarantee the protection of the consumer in the situation of doorstep selling, where there is ample scope for abuse (see Rudisch, B., ‘Das “Heininger”-Urteil des EuGH vom 13. 12. 2001, Rs C‑481/99: Meilenstein oder Stolperstein für den Verbraucherschutz bei Realkrediten?’, Verbraucherschutz in Europa: Festgabe für Heinrich Mayrhofer , 2002, pp. 189‑205, p. 204). The aim is certainly not to promote doorstep selling – on the contrary, ‘the freedom of Member States to maintain or introduce a total or partial prohibition on the conclusion of contracts away from business premises … must not be affected’ (see the fifth recital in the preamble to Directive 85/577).

(102)  – Which also applies to the judgment in Quelle (cited in footnote 12 above), the conclusion of which is the same as the one proposed in this Opinion, albeit for different reasons than the ones put forward here.

(103)  – An important difference exists in so far as in Directive 85/577 the right of withdrawal is indefinite in the event of failure to give notice of the right of withdrawal (see the first sentence of Article 5(1) of that directive). As has already been explained, in contrast, Directive 97/7 merely provides for an extension of the period for the exercise of the right of withdrawal in the event of failure to give notice of that right.

(104)  – See also paragraph 43 of the judgment in Hamilton (cited in footnote 84 above).

(105)  – Point 31 of this Opinion.

(106)  – Point 31 of this Opinion.

(107)  – Point 34 of this Opinion.

(108)  – It is the settled case-law of the Court of Justice that Community law does not prevent national courts from taking steps to ensure that the protection of the rights guaranteed by Community law does not entail the unjust enrichment of those who enjoy them. In this regard, the Commission mentions Case 238/78 Ireks-Arkady v EEC [1979] ECR 2955, paragraph 14; Joined Cases C‑441/98 and C‑442/98 Michaïlidis [2000] ECR I‑7145, paragraph 31; Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraph 30; and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 94. In connection with the coordination of national social security schemes by the Community, the Court rightly held that rules governing the recovery of sums paid though not due and the applicability of any limitation periods are therefore, in principle, a matter for the legislature of the Member State concerned (see Pasquini (cited in footnote 11 above) paragraph 53).

(109)  – See point 90 of this Opinion.

(110)  – See point 81 of this Opinion.

(111)  – See points 80 to 87 of this Opinion.

(112)  – See point 82 of this Opinion.

(113)  – Possibly with inherent significant problems relating to proof.

(114)  – See, in particular, point 49 of this Opinion.

(115)  – Which cannot be resolved by adopting the proposal made by Buchmann (footnote 49 above), p. 508, that a time should be determined when the consumer consciously decides that he intends to keep the goods. To take such a time, which would not be objectively documentable in practice, as a point of departure would in fact further complicate the situation as regards the obligation to lead evidence and the burden of proof.

(116)  – See points 97 and 98 of this Opinion.