C-45/96
ECLI:EU:C:1997:174
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BAYERISCHE H Y P O T H E K E N - U N D WECHSELBANK v DIETZINGER
OPINION OF ADVOCATE GENERAL JACOBS delivered on 20 March 1997 *
1. The issue in this case, which comes by more than DM 1.6 million, and claimed way of a reference from the Bundesgericht- D M 50 000 from the defendant under the shof (Federal Court of Justice), is essentially guarantee. whether a guarantee given to a financial institution by an individual who is not acting in the course of his trade or profession, in order to secure a loan by that institution to a third party acting in the course of his trade or profession, falls within the scope of Council Directive 85/577/EEC of 20 Decem- ber 1985 to protect the consumer in respect of contracts negotiated away from business premises ('the Directive'). 1 3. The defendant sought to renounce the guarantee in accordance with the German Gesetz über den Widerruf von Haustürge- schäften und ähnlichen Geschäften of 16 January 1986 (Law on the cancellation of 'doorstep' transactions and analogous trans- actions; 'the 1986 Law'). The issue was liti- The facts gated and reached the Bundesgerichtshof, which referred the following question to the Court for a preliminary ruling:
2. The defendant's father ran a building firm in respect of which the plaintiff bank granted a current account overdraft facility. The defendant's parents were visited by an employee of the bank; in the course of that 'Where a contract of suretyship is concluded visit, the defendant gave a written guarantee under German law between a financial of up to DM 100 000 of his parents' obliga- institution and a natural person who is tions to the bank. The defendant was not not acting in that connection in the course informed of any right to cancel the guaran- of his trade or profession, in order to secure tee. The bank subsequently called in loans a claim by the financial institution against a granted to the defendant's parents, totalling third party in respect of a loan, is it covered by the words "contracts under which a trader supplies goods or services * Original language: English. to a consumer" (Article 1(1) of Council 1 — OJ 1985 L 372, p. 31. Directive 85/577/EEC of 20 December 1985
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to protect the consumer in respect of 6. Written observations were submitted by contracts negotiated away from business the defendant, the Belgian, Finnish, French premises)?' and German Governments and the Commis- sion, all of whom with the exception of the Belgian Government were also represented at the hearing.
4. The domestic law issue appears to be The Directive whether a guarantee constitutes a contract for the supply of goods or services con- cluded for valuable consideration within the meaning of the 1986 Law; the order for ref- erence sets out arguments either way, which appear to turn on the concept of consider- 7. The thrust of the Directive is to ensure ation in national law. Moreover there appears that, in respect of transactions to which it to be a divergence of view between the applies, the consumer has, and is notified of, Ninth and the Eleventh Chambers of the a 'cooling-off period of at least seven days Bundesgerichtshof as to whether consider- during which he can withdraw from the con- ation is in fact necessary in order to bring a tract. 3 contract within the scope of the 1986 Law. It appears in any event that, if the guarantee falls within the Law, the defendant is entitled to renounce it.
8. The Directive was adopted under Article 100 of the Treaty. The preamble states as follows:
5. The 1986 Law appears to have been intended to implement the Directive. If guar- antees such as that at issue in the main pro- ceedings fall within the concept 'contracts '[First recital] Whereas it is a common form under which a trader supplies goods or ser- of commercial practice in the Member States vices to a consumer' within the meaning of for the conclusion of a contract or a unilat- Article 1(1) of the Directive, the 1986 Law eral engagement between a trader and con- should be construed so that the guarantee sumer to be made away from the business falls within it. 2 premises of the trader, and whereas such contracts and engagements are the subject of
2 — Case 14/83 Von Cobon and Kamann v Land Nordrhem- Weafalan [1984] ECR 1891. 3 — Articles 4 and 5.
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legislation which differs from one Member State to another;
[Seventh recital] Whereas the freedom of Member States to maintain or introduce a total or partial prohibition on the conclusion of contracts away from business premises, inasmuch as they consider this to be in the interest of consumers, must not be affected ...'.
[Third recital] Whereas the preliminary pro- gramme of the European Economic Com- munity for a consumer protection and infor- mation policy provides inter alia, under paragraphs 24 and 25, that appropriate mea- 9. Article 1 provides as follows: sures be taken to protect consumers against unfair commercial practices in respect of doorstep selling; whereas the second pro- gramme of the European Economic Com- munity for a consumer protection and infor- mation policy confirmed that the action and ' 1 . This Directive shall apply to contracts priorities defined in the preliminary pro- under which a trader supplies goods or ser- gramme would be pursued; vices to a consumer and which are con- cluded:
— during an excursion organized by the [Fourth recital] Whereas the special feature trader away from his business premises, of contracts concluded away from the busi- ness premises of the trader is that as a rule it is the trader who initiates the contract nego- tiations, for which the consumer is unpre- pared or which he does not expect; whereas the consumer is often unable to compare the or quality and price of the offer with other offers; whereas this surprise element gener- ally exists not only in contracts made at the doorstep but also in other forms of contract concluded by the trader away from his busi- ness premises; — during a visit by a trader
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(i) to the consumer's home or to that of 4. This Directive shall also apply to offers another consumer; made contractually by the consumer under conditions similar to those described in para- graph 1 or paragraph 2 where the consumer is bound by his offer.'
(ii) to the consumer's place of work;
10. 'Consumer' is defined as 'a natural per- son who, in transactions covered by this Directive, is acting for purposes which can where the visit does not take place at the be regarded as outside his trade or profes- express request of the consumer. sion'. 'Trader' is defined as 'a natural or legal person who, for the transaction in question, acts in his commercial or professional capac- ity, and anyone acting in the name or on behalf of a trader'. 4
2. This Directive shall also apply to con- tracts for the supply of goods or services other than those concerning which the con- sumer requested the visit of the trader, pro- vided that when he requested the visit the 11. 'Contract' is nowhere defined. consumer did not know, or could not rea- sonably have known, that the supply of those other goods or services formed part of the trader's commercial or professional activities.
12. It may be noted at the outset that, on the assumption that the guarantee was not con- cluded at the home of the defendant and on the basis that the defendant's parents were not 'consumers' in the context of the trans- action at issue, the guarantee would in any 3. This Directive shall also apply to con- event not fall within Article 1(1) of the tracts in respect of which an offer was made Directive, since it was not concluded during by the consumer under conditions similar to a visit by a trader to a consumer's home or those described in paragraph 1 or para- the consumer's place of work or during an graph 2 although the consumer was not bound by that offer before its acceptance by the trader. 4 — Article 2.
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excursion organized by the trader away from in their commercial capacity. The referring his business premises. The wording of court has asked whether a guarantee such as Article 1(1) appears surprisingly restrictive in that described above is a contract within the the light of the preamble to the Directive, scope of the Directive. which suggests that the essential element determining application of the Directive is that the contract in question was concluded away from the trader's business premises. 5 In its earlier ruling on the Directive in Fac cini Doń, 6 the Court was not called upon to address that issue, although it was not obvi ous from the order for reference in that case that the facts fell within Article 1(1); 7 the Court restricted itself to pointing out to the 14. The Belgian, Finnish, French and Ger national court the need to verify whether the man Governments all argue that the guaran contract was concluded in the circumstances tee is not •within the Directive. There are described by the Directive. 8 In this case, the three distinct, albeit overlapping, lines of national court has phrased its question in argument to that effect. First, it is argued such a way that it is in any event both pos generally that the guarantee is not a contract sible and appropriate for the Court to pro for the purposes of the Directive because the vide an answer. consumer receives no consideration, or, in other words to the same effect, because the guarantee is not a synallagmatic contract — namely a bilateral agreement involving mutual and reciprocal obligations or duties — but a unilateral undertaking from the point of view of the guarantor. Secondly, it is argued in more specific terms that the guar antee is not a contract as defined by Article 1(1) because no goods or services are 13. The transaction at issue in this case is a supplied by the trader party to the consumer guarantee (or contract of suretyship; the party. Thirdly, it is argued that the guarantor terms are interchangeable) under which the cannot be correctly described as a consumer. defendant, acting for purposes outside his trade or profession, undertook to the plain tiff bank, acting in its commercial capacity, to stand surety for the loan provided by that bank to the defendant's parents, also acting
5 — See the first, fourth and seventh recitals in the preamble, set out in paragraph 8 above. Article 1(1) of the Commission's original proposal for a Council Directive to protect the con sumer in respect of contracts which have been negotiated away from business premises (OJ 1977 C 22, p. 6) provided 15. The defendant and the Commission that the Directive applied to contracts 'negotiations for argue on the contrary that the guarantee is a which have been initiated away from business premises.' 6 — Case C-91/92 Ascessi Dori v Recreb [1994] ECR I-3325. contract, both on the general basis that all 7 — See paragraph 3 of the judgment and paragraph 3 of the contracts between a trader and a consumer Opinion of Advocate General Lenz. (including unilateral undertakings given by a 8 — Paragraph 14 of the judgment; see also paragraph 26 of the Opinion of Advocate General Lenz. consumer to a trader) are covered and in
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more specific terms because contracts made as the minority, the distinction may be cru- between a trader who supplies goods or ser- cial in this case: the guarantee at issue was vices and a consumer are covered. concluded between a trader who supplies goods or services, namely the plaintiff bank, and a consumer, namely the defendant, and on a literal reading of the majority version it appears to be irrelevant whether the goods or services were supplied to the other party to the contract at issue under that contract or 16. In keeping with the Court's approach to to another party in the context of a separate the interpretation of Community legislation, transaction. I will accordingly assume that it I will consider in turn the terms, the scheme is not conclusive that the contract at issue and the objectives of the Directive with a does not fall within the literal wording of the view to determining whether a guarantee of English version of Article 1(1). the type at issue falls within its scope.
The terms of the Directive
18. In my view, notwithstanding the literal terms of the majority version of Article 1(1) the Directive applies solely to contracts 17. The English version of the Directive sug- under which a trader supplies goods or ser- gests that there is no scope for it to apply to vices to a consumer. a transaction such as the guarantee at issue in the main proceedings, since the transaction is not a contract 'under which a trader supplies goods or services to a consumer' within the meaning of Article 1(1). Most of the other language versions, however, are framed in wider terms, more or less to the same effect as the French: 'contrats conclus entre un commerçant fournissant des biens ou des ser- vices et un consommateur'. O n a literal read- ing of those versions, it is not necessary in 19. As the Belgian Government submits, order for the Directive to apply that the even if the wording (in the French version) goods or services in question are supplied of Article 1(1) is broad, the provision should under the contract at issue: it suffices that be read in the light of the remainder of that one of the parties is a supplier of goods or article. It is apparent from Article 1 as a services. While it may be thought that the whole — in particular in my view linguistic distinction is slight and that the Article 1(2) — that the contracts covered are majority version may well have been those under which a trader supplies goods or intended to have the same meaning and effect services to a consumer.
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20. The Commission suggests that the rea- which to my mind demonstrate unequivo- son for the reference to 'goods or services' in cally that it was intended to apply only to Article 1(1) is simply to make clear that the synallagmatic contracts for the supply of Directive is not restricted to traders supply- goods or services to a consumer. ing goods. At the hearing, the Commission invoked the terms of Article 1 of the original proposal, 9which referred simply to 'con- tracts between a consumer and a trader, and unilateral engagements by a consumer towards a trader ...'. It argued that the addi- tion of the reference to 'goods or services' was intended to show that all types of con- 22. Article 3(2) provided that the contract tract were covered by the Directive. It would (referred to as a 'doorstep contract') was to however be perverse for the legislature to contain inter alia: seek to broaden the meaning of an already general, unqualified noun ('contracts') by adding a qualification limiting the subject- matter of the contract to goods and services. Far from broadening the scope of the con- cept, in my view the ultimate addition to Article 1(1) of the reference to goods or ser- '— a description of the goods or service vices is surely designed to delineate forming the subject matter of the contract, unequivocally its scope.
— a time limit of delivery of the goods or supply of services,
— the price, 21. Moreover, the Commission's assertion that the original proposal for the Directive was not restricted to contracts for the supply of goods and services is not consistent with the scheme and tenor of that proposal. While I do not wish to dwell on the details of a — the terms of payment draft long since superseded by the final ver- sion, I will, since the Commission has invoked the document in support of its view, refer to two provisions in the proposal
9 — Cited in note 5. *
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23. Moreover, the proposal included as an 24. I accordingly cannot accept the Com- Annex a model form for the exercise by the mission's contention that the proposal was consumer of his right of cancellation. That intended to cover a wider category of trans- form was as follows: actions than synallagmatic contracts for the supply of goods or services.
'I hereby declare that I am cancelling the contract
for (description of the goods or services)
amounting to 25. At the hearing, the Commission put for- (price) ward a further argument based on the word- ing of the Directive: it referred to Article 3(2)(a), which provides that the Directive does not apply to, inter alia, 'con- tracts for the construction, sale and rental of signed immovable property or contracts concerning other rights relating to immovable property'. The Commission states that the last phrase refers to, for example, guarantees, and con- cludes that guarantees must therefore be gen- (date) erally covered by the Directive since other- wise there would be no need for this specific exclusion. However, it is not obvious to me that 'other rights' necessarily encompasses guarantees: the examples given by the Com- mission in the Explanatory Memorandum 10 Name to the original proposal of such other rights are 'applications for or transfers of a mort- gage, the granting of easements of right of way'. 11
Address 10 — COM(76) 5+4 final; 12 January 1977. 11 — Commentary on Article 2(d).
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The scheme of the Directive some force; moreover I do not accept the Commission's assertion that the reference to unilateral undertakings in the preamble to the Directive means that guarantees are cov- ered. The Commission referred at the hear- ing to the first recital in the preamble to the Directive, which states: 26. As the French Government points out, if a guarantee were covered by the Directive so that the guarantor had the option of with- drawing from it within a specified period, it would be necessary to provide for the fate of the principal contract during that period: that there is no provision in the Directive to 'Whereas it is a common form of commercial that effect supports the view that the Direc- practice in the Member States for the conclu- tive was not intended to extend to such sion of a contract or a unilateral engagement transactions. It is interesting to note that the between a trader and consumer to be made Commission's original proposal for the away from the business premises of the Directive specifically prohibited the trader trader ...'. from requiring the consumer to provide any surety for payment of the contract price before the expiration of the cooling-off period: 12 that provision was 'intended to prevent as far as possible the creation of a fait accompli before the expiry of the cooling-off period'. 13 It was not included in the final version of the Directive, which leaves the legal effects of renunciation to The Commission asked what consequences national law. 14 could be drawn from that reference in the preamble other than that the Directive cov- ers unilateral engagements such as the guar- antee at issue.
27. The Belgian Government argues that a guarantee cannot be regarded as falling within the concept of 'contract' in Article 1(1) of the Directive: it is a non- 28. The answer to that question is in my synallagmatic contract where only one of the view to be found in the legislative history of parties, the guarantor, gives an undertaking the Directive and in particular the Commis- to the other. In my view, that argument has sion's own commentary on the original pro- posal for the Directive. In that proposal, Article 1(1) stated that the Directive applied to 'contracts between a consumer and a 12 — Article 9. 13 — Explanatory Memorandum. trader, and unilateral engagements by a 14 — Article 7. consumer towards a trader ...'. The wording
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•was changed between the Amended Proposal have done what the Directive seeks to pre- in January 1978 15 and the final text. vent, namely bound himself to a transaction away from the trader's business premises with no 'cooling-off' period. The extension of the Directive to such circumstances was originally achieved by the express reference in Article 1(1) to unilateral engagements. In the final text, the same result is achieved by 29. As the German Government points out, Article 1(3) and 1(4), and it is presumably for 'unilateral engagement' in this context was that reason that the reference to unilateral probably intended to refer to the making of engagements in Article 1(1) was dropped. an offer by the consumer in circumstances That interpretation is consistent with the where the offer becomes binding either on' retention of the reference to unilateral being made or on acceptance by the trader. engagements in the preamble. That interpretation accords with the Explanatory Memorandum to the original proposal, 16 in which the Commission stated:
'The Directive also applies where the con- 31. It may be concluded therefore that the sumer engages himself unilaterally without Directive is intended to apply to unilateral any corresponding obligations of the trader, engagements of the type mentioned, but not for instance when ordering a[n] electrical necessarily to all unilateral engagements. appliance or when binding himself unilater- ally to acquire goods or to accept services. Even though a contract has not yet been concluded in these cases, protection of the consumer is necessary, as the unilateral engagement may already affect his interests.'
32. Finally, the Belgian, Finnish and German Governments argue that the defendant was not a 'consumer' for the purposes of the Directive, submitting that the notion of 'con- 30. Without express provision, a consumer sumer' encompasses the concept of recipient who made an offer away from the trader's of the goods or services supplied under the business premises would not benefit from transaction in question. To my mind, there is the Directive even though he would in effect some force in that argument. The guarantee is clearly severable from the principal trans- action (namely the extension of credit), and in the context of the guarantee it is the guar- 15 — Amendment to the proposal for a Council Directive to pro- tect the consumer in respect of contracts which have been antor who is the supplier of services and the negotiated away from business premises, OJ 1978 C 127, bank which is the recipient. The German p. 6. 16 — Gited in note 10, commentary on Article 1. Government concludes that the Directive is
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accordingly inapplicable, since the consumer proposed directive was intended to have as is the supplier. I prefer to turn the analysis wide a scope as possible. 19 round and emphasize the difficulty of identi- fying the guarantor as a consumer in any real sense.
36. The German Government argues that the aim of the Directive is not to give general The objectives of the Directive protection to individuals against any type of transaction which they undertake without 'forethought but rather to protect them as consumers against particular and specified types of contract. In the case of a guarantee there is no question of the satisfaction of the guarantor's personal needs as envisaged by the Directive: a guarantor knows that he is 33. Various parties refer to the objectives of not signing a consumer contract. That argu- the Directive in support of their view as to ment applies a fortiori where, as here, the whether the Directive applies to guarantees credit transaction in respect of which the of the type at issue in the main proceedings. guarantee is given is for both parties a com- mercial transaction and the guarantee is as to the economic situation of one of the trading parties. In those circumstances, the guarantor is not entitled to the rights granted to con- sumers acting in a purely private capacity.
34. The defendant refers to the Directive's objective of consumer protection: in his view, the Directive seeks to establish as extensive consumer protection as possible. 37. The Belgian Government submits that the Directive's objective of protection, achieved by conferring on the consumer a right of withdrawal, is targeted at the dan- gers arising out of the particular form of sell- ing consisting in direct marketing (restricting 35. The Commission refers to the third and the consumer's freedom of choice, lack of fourth recitals in the preamble, set out initiation by the consumer, no possibility of above, 17 and to the Explanatory Memoran- comparing price or quality). The dangers dum to the original proposal for the Direc- threatening a guarantor, on the other hand, tive 18 in which it is indicated that the arise not from the trader but rather from the principal debtor.
17 — Sec paragraph 8. 18 — Cited in note 10. 19 — Commentary on Article 1.
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38. In my view, the legislative history and selling methods, 21 and (in the words of the context of the Directive support the govern- second programme) to protect purchasers of ments' view that it was not intended to goods or services against unfair sales prac- extend to guarantees of the type at issue in tices and high-pressure selling methods. 22 the main proceedings.
39. It is of course incontrovertible that the Directive seeks to protect consumers. It does not however follow from that proposition 41. Admittedly, it is stated in the Explana- that all consumers are protected in all cir- tory Memorandum to the original proposal cumstances by the Directive: like other for the Directive that the 'need for protect- directives with consumer protection as their ing the consumer is not limited to any spe- aim, the Directive applies to certain transac- cific type of contract for instance contracts tions only. 20 for the supply of goods, but extends to all contracts which are initiated by a trader away from business premises'. 23 That state- ment however must be seen in its context: the Explanatory Memorandum opens with the proposition 'Where contracts for goods or services are initiated away from business premises of a trader the consumer generally 40. The third recital in the preamble, set out needs special protection.' Examples are given above and invoked by the Commission in of 'certain types of contracts ... [where] a support of its argument for a wide construc- particular consumer protection might be tion, refers to the Community's preliminary required': 'especially insurance contracts, and secondary programmes for a consumer consumer credit contracts, contracts relating protection and information policy. Those to the sale of shares, investment funds, etc. two programmes indicate that the intention or contracts on distance education'. 24 All was (in the words of the preliminary pro- those contracts are bipartite, synallagmatic gramme) to protect purchasers of goods or contracts for the provision of goods or ser- services against the abuse of power by the vices by a trader to a consumer. The same seller, in particular against high-pressure may be said of all the other examples given in the Explanatory Memorandum of transac-
20 — Sec for example Council Directive 84/450/EEC of 10 Sep- tember 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member 21 — Council Resolution of 14 April 1975 on a preliminary pro- States concerning misleading advertising, OJ 1984 L 250, gramme of the European Economic Community for a con- p. 17; Council Directive 87/102/EEC of 22 December 1986 sumer protection and information policy, OJ 1975 C 92, for the approximation of the laws, regulations and admin- p. 1, paragraph 19(i) of the Annex. istrative provisions of the Member States concerning con- sumer credit, OJ 1987 L 42, p. 48; Council Directive 22 — Council Resolution of 19 May 1981 on a second pro- 93/13/EEC of 5 April 1993 on unfair terms in consumer gramme of the European Economic Community for a con- contracts, OJ 1993 L 95, p. 29; and most recently the pro- sumer protection and information policy, OJ 1981 C 133, posed directive of the European Parliament and of the p. 1, paragraph 28(1) of the Annex. Council on the protection of consumers in respect of con- 23 — Paragraph I.2. tracts negotiated at a distance. 24 — Paragraph I.3.
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tions to which the proposed directive applies 43. I would however emphasize that it does or would in the absence of specific exemp- not follow from that conclusion that Mem- tion apply, namely an order for an electrical ber States may not protect a guarantor in appliance, a unilateral undertaking to acquire such circumstances as a matter of national goods or to accept services, contracts relating law. Article 8 of the Directive permits Mem- to the installation of a heating system, the ber States to adopt or maintain more favour- maintenance of a heating oil tank, the repair able provisions to protect consumers in the of a roof, and small doorstep sales such as field which it covers. It would not therefore milk and bread. be contrary to the Directive for the national court in this case to find that as a matter of German law the guarantee is within the 1986 Law. Moreover, if it is correct — as is sug- gested in certain of the observations made to the Court — that the defendant was wholly 42. I am accordingly not persuaded that the Directive, which in my view aims to protect uninformed of the nature of the commitment the consumer party to contracts for the sup- into which he was entering, and which he ply of goods or services negotiated away was even pressurized into signing, it may from business premises, extends to the pro- well be that other national law remedies are tection of a guarantor in the circumstances of available in the spheres of misrepresentation the main proceedings. or undue influence.
Conclusion
44. A c c o r d i n g l y the question referred b y the Bundesgerichtshof s h o u l d in m y o p i n - ion be answered as follows:
A guarantee given t o a financial i n s t i t u t i o n b y an individual w h o is n o t acting in t h e c o u r s e of his t r a d e o r profession, in o r d e r t o secure a loan b y t h a t i n s t i t u t i o n t o a t h i r d party, is n o t w i t h i n t h e s c o p e of C o u n c i l Directive 8 5 / 5 7 7 / E E C of 20 D e c e m b e r 1985 t o p r o t e c t t h e c o n s u m e r in respect of contracts n e g o t i a t e d a w a y from business premises.
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