CJEU - C 227/08 / Judgment

 

This case concerned the interpretation of Article 4 of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises. A reference was made in the course of proceedings between EDP Editores SL (‘EDP’) and Ms Martín Martín following the refusal of Ms Martín Martín to pay for goods ordered in accordance with the signing of a contract agreed, at her home, with an EDP representative. Ms Martin was ordered by the Salamanca Court of First instance to pay the agreed sum. She appealed. The Salamanca Regional High Court considered that the contract in question may be declared void as the defendant had not been informed of her right to withdraw her consent within a period of seven days from delivery of the goods, nor of the conditions for and consequences of the exercise of that right. However, these points were not made by Ms Martín Martín before the court at first instance or during the appeal proceedings. The Regional High Court therefore sought a ruling on whether the Council Directive and article 38 of the EU Charter of Fundamental Rights allowed it, of its own motion, to declare a contract which falls within the scope of that Directive void in such circumstances.

 

 

The ECJ held that as a general rule a national court is able to act of its own motion only in exceptional cases where the public interest requires its intervention (para 20). It ruled that the interests of consumers protected by the Directive amounted to such a public interest allowing the Court to act of its own motion.

 

 

EU Charter of Fundamental Rights - Article 38:

 

The ECJ held that “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. (para 23) In order to strengthen consumer protection in situations where consumers find themselves caught unawares, Article 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.” (para 24) The public interest served by these provisions therefore enabled the national court to apply arguments in the consumer’s favour even though they had not been made in any application or defence.