The Supreme Court has held that a seller of goods at a distance, not a consumer business with may charge the shipping costs for the shipment of goods to the consumer, if he exercises his cancellation or return rights.
The plaintiff is a consumer association. The defendant operates a mail order company. It provides their customers for the delivery of the goods have a flat delivery fee of € 4.95 per order charge. The applicant takes the defendant to enjoin the collection of such costs after the exercise of the cancellation or return with distance selling act to complete. The LG Karlsruhe ruled in favor of the action. OLG Karlsruhe rejected the appeal directed against it.
The revision of the mail order company had no success. The Eighth Civil Division of the Supreme Court had noted that German law does not expressly grant the consumer a refund of the cost of delivering the goods ordered. The Supreme Court ordered a stay of appeal proceedings and by order dated 01.10.2008 referred to the ECJ for a preliminary ruling the question whether the Directive 97/7/EC of the European Parliament and the Council of 20.05.1997 is interpreted on the protection of consumers in contracts negotiated at a distance (Distance Selling) meaning that it precludes a national rule under which the cost of delivering the goods and can the consumer be imposed if he contract has been revoked.
This has the ECJ affirmed and executed in support of that clearly with Article 6 of the Distance Marketing Directive aims, not to discourage consumers from exercising his right of withdrawal. According to the wording of Article 6 I the Distance Selling Directive, the consumer any distance contract shall have a period of seven working days without giving reasons and without Penalty revoked. Article 6 II Distance Selling Directive provides that the consumer who exercises the right of withdrawal under this Article, which have previously been free to report to the supplier payments. Article 6 I and II of the Distance Selling Directive, indicating in each case before the the only cost to the consumer may be imposed while the direct cost of returning the goods.
The term "the only charge, from the two paragraphs of Article 6, requires the opinion of the Court, a narrow interpretation and will therefore constitute the only exception. The term covers all of the payments made by consumers in connection with the contract payments. A Interpretation of the Distance Selling directive stating that it would allow Member States of the European Union should be a mechanism that puts the consumer in the event of such cancellation, the costs of delivering charge would be, the objective of Article 6 I the Distance Selling Directive precludes . The consumer would also all related to the transportation of goods related costs will be imposed. The resulting chilling effect on the exercise of the right could also not be affected by the fact that the consumer has been informed prior to closing on the level of delivery costs. Thus, Article 6, I and II interpreted the Distance Selling Directive, meaning that a national rule conflict, according to the supplier under a distance contract the consumer to bear the costs of delivering the goods may, if it exercises its right of withdrawal.
Because of this the national courts binding interpretation of the Distance Marketing Directive by the ECJ is § 346 I BGB in conjunction with § § 312, 357 BGB conformity with the directive to be interpreted as meaning that the consumer following the withdrawal of a distance contract is entitled to restitution Provided Hinsendekosten.
Accordingly, it denied sellers of goods at a distance, business, consumers, the cost for the shipment of the goods sold by it and then pay when accompanying their withdrawal or go right to return.
BGH Judgement of 07/07/2010 - VIII ZR 268/07
Bundesgerichtshof - Communication from the press office 139/2010
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