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The European Court of Justice has issued an interesting decision in the case between Handelsgesellschaft Heinrich Heine GmbH v Verbraucherzentrale. Heinrich Heine, a mail-order company, provides in its general conditions of sale that the consumer is to pay a flat rate charge of € 4.95 for delivery. That sum is not refunded by the supplier even if the consumer exercises his right of withdrawal.
Indeed, the EU Distance Selling Directive 1997/7 regulating any kind of distance contract (i.e. sales through the Internet, telephone, email etc.) prescribes that:
“consumer shall have a period of at least seven working days [that are 10 working days under Italian law] 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 Verbraucherzentrale Nordrhein-Westfalen, a German consumer association, brought an action against Heinrich Heine for an injunction to restrain it from continuing with that practice, since it considers that, in the event of withdrawal, delivery costs must not be charged to the consumer.
The European Court of Justice held that the charging of the delivery costs to a consumer exercising the right of withdrawal from the agreement is in contrast with the Distance Selling Directive. Indeed, the rationale behind the Distance Selling Directive is that consumers have to be free in their decision on exercising the right of withdrawal from the agreement and the charging of the delivery cost would in some ways discourage them from taking such decision.
This court decision is relevant and should be carefully taken into account by e-commerce providers also because the Distance Selling Directive is not subject to the principle of the country of origin of the provider, but binds all providers selling their items to consumers located in the EU countries.
Feel free to contact me, Giulio Coraggio, if you need clarifications on the above.
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