Member Article

The Advocate General of the European Court of Justice (ECJ) expressed her opinion in respect of a reference for a preliminary ruling from a German court.

The main proceedings before the German court concern a German distance retailer who tried to charge the customer of a second-hand laptop for the eight months of use she had. The customer took the retailer to court over the charge and the German courts asked the ECJ if Germany was allowed to have a national law allowing the charge for use.

Under the Distance Selling Directive (Directive), consumers have the right to withdraw from a distance contract, without penalty and without giving any reason, at any time during the 7 day period following receipt of the goods. This 7 day "cooling off" period is extended to 3 months if the retailer fails to provide the consumer with certain prescribed information, including details about their right to withdraw.

The Directive also 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".

In the opinion of the Advocate General:

1. The levy made by the retailer in respect of "compensation for use" classed as a "charge" for the purposes of the Directive, and therefore, was not permitted as it did not classify as the direct costs of returning the goods.
2. In addition, she also stated that even if the ECJ did not agree with the findings referred to under 1 above, a provision of national law allowing for compensation for use did not fall within the regulatory discretion of the Member States.