On June 13, 2014, far-reaching changes to consumer protection regulations will come into force. They serve to implement the Consumer Goods Purchase Directive and, in particular, create new regulations for the withdrawal of purchase contracts between commercial dealers and consumers.
A distinction must be made between withdrawal (from a concluded contract) and the revocation of a declaration of intent aimed at concluding a contract. In the first case (withdrawal), an effectively concluded contract will no longer be valid. In the last case (withdrawal), no contract will be concluded retroactively. Before June 13, 2014, instead of a right of withdrawal, a right of return could be granted as an alternative. This option has now been deleted.
The main question is whether the consumer has to give the dealer a deadline before declaring withdrawal. This is supported by the fact that the wording of the law is clear: In principle, setting such a deadline is always necessary unless special circumstances justify immediate withdrawal. However, the European directive (consumer goods purchase directive), which was implemented through the legislative changes on June 13, 2014, no longer provides for a deadline, so this European directive and its regulations are to be viewed as a “special circumstance”. Alternatively, it is also suggested that only if subsequent delivery is not made or not made on time is it sufficient for an effective withdrawal that the seller allows a reasonable deadline to pass without the consumer having previously set an effective deadline. Whether this is correct will soon be the subject of court decisions.
What applies to the setting of a deadline by consumers and how the provisions in the general terms and conditions may need to be adjusted accordingly should be followed carefully.
The current legal situation for traders who offer their goods and services in the EU, i.e. in various European legal systems, is – to put it carefully – confusing. Consumer protection has now been largely harmonized and will undergo further changes in Germany from June 13, 2014. However, each EU state still has its own regulations that are not regulated uniformly, for example in the area of general terms and conditions. The costs of having legal certainty in every EU state are associated with high costs, which particularly prevent small and medium-sized companies from boldly organizing sales throughout the EU.
The – planned – Common European Sales Law should apply in every EU state in addition to the respective national regulations and should not replace them. A corresponding choice of law is therefore necessary. The advantage is that legal uncertainty should be largely ruled out because this common European sales law applies equally in all countries. A high level of consumer protection is also guaranteed in this Common European Sales Law. However, this has the advantage for entrepreneurs that consumers are more likely to agree to a corresponding choice of law. In return, companies receive legal certainty for their sales.
It remains to be seen whether and how the member states will agree on the introduction of the Common European Sales Law, in particular whether it only applies to distance selling contracts. In addition, the important practical question of the legal enforcement of claims has not been answered. Entrepreneurs should nevertheless monitor developments in order to be up to date.
Dr. Christian Andrelang
andrelang law
