ECJ Opinion – Directive 85/577 – Consumer Protection in the case of contracts concluded away from business premises – Termination – Failure to inform the consumer of his right to terminate the contract of consumer protection measures in the absence of provision of information nullity relative and absolute nullity of the contract – Recognition ex officio
The Court considered the centrality of the right of cancellation to the Directive: ‘ the directive ensures consumer protection by granting, first of all, a right of cancellation to the consumer. Such a right seeks specifically to offset the disadvantage, for the consumer, of sales which take place away from business premises, to enable him over a period of at least seven days to assess the obligations arising under the contract
In order to strengthen consumer protection in situations where consumers find themselves caught unawares, art 4 of the Directive also requires traders to give consumers written notice of their right to cancel the contract and the conditions for and means of exercising such a right.
Lastly, it is apparent from art 5(1) of the Directive that the minimum period of seven days must be calculated from the date of receipt of that notice from the trader. That provision is explained, as the Court has previously indicated, by the fact that if the consumer is not aware of the existence of the right of cancellation, he will not be able to exercise that right
In other words, the system of protection established by the Directive assumes not only that the consumer, as the weaker party, has the right to cancel the contract, but also that he is made aware of his rights by being specifically informed of them in writing.
It must therefore be held that the obligation to give notice of the right of cancellation laid down in art.4 of the Directive plays a central role in the overall scheme of that directive, as an essential guarantee, as the Advocate General stated in [AG55] and [AG56] of her Opinion, for the effective exercise of that right and, therefore, for the effectiveness of consumer protection sought by the Community legislature.’
Judges:
Trstenjak AG
Citations:
C-227/08, [2009] EUECJ C-227/08 – O, [2009] ECR 1-11939
Links:
Statutes:
Cited by:
Opinion – Eva Martin Martin v EDP Editores, SL ECJ 17-Dec-2009
ECJ Directive 85/577/EEC Article 4 Consumer protection – Contracts negotiated away from business premises – Right of cancellation – Obligation on the trader to give notice of that right – Contract void – . .
Cited – Robertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .
Lists of cited by and citing cases may be incomplete.
European, Consumer
Updated: 24 July 2022; Ref: scu.342055
