Right of Withdrawal – Interoperability of Directives

E. Terryn, G. Straetmans, V. Colaert (eds.), Landmark cases of EU consumer law. In honour of Jules Stuyck, Cambridge/Antwerp/Portland: Intersentia, pp. 545-558

Centre for the Study of European Contract Law Working Paper Series No. 2013-11

Amsterdam Law School Research Paper No. 2013-61

14 Pages Posted: 22 Oct 2013

See all articles by Marco Loos

Marco Loos

University of Amsterdam - Centre for the Study of European Contract Law (CSECL)

Date Written: October 18, 2013

Abstract

This paper is published in the liber amicorum for Jules Stuyck (Leuven). This liber amicorum consists of case notes to landmark cases of the CJEU. The Travel Vac case, which is relatively unknown, stands at the crossroads of unfair commercial practices and consumer contract law, just as the work of Jules Stuyck does. In the Travel Vac case the Court took a number of important decisions. First, where the scope of two directives overlap, both directives are applicable, unless one claims priority. Second, the Travel Vac case makes clear that the application of the right of withdrawal under the Doorstep Selling Directive and the Timeshare Directive may originally be provided to consumers to compensatie consumers from possibly being unduly influenced or manipulated by the trader during the conclusion of the contract, but the consumer need not in fact be mislead or surprised in order to be able to withdraw from the contract. The Travel Vac case thus provides for a clear distinction between rights of withdrawal and defects of consent, such as mistake, fraud and threat. The absence of a need to state reasons for the withdrawal is now codified in the 2011 Consumer Rights Directive. Similarly, the absence of a form requirement – despite the fact that the wording of the Doorstep Selling Directive suggested otherwise – is now codified in the 2011 Directive. Finally, the CJEU could have gone either way with regard to the question whether the trader would have to be compensated by the consumer who wishes to make use of the right of withdrawal. Its decision that the consumer need not pay such compensation seems evident now, but was far from that in 1999. With its decision, the CJEU ensured that consumers would not be discouraged from exercising the right of withdrawal. As such it may have contributed to a large extent to the success of this instruments – in particular in other areas, such as distance selling.

Keywords: right of withdrawal, CJEU, case C-423/97, Travel Vac, [1999] ECR p. I-2195, Case note to old landmark case

JEL Classification: K12

Suggested Citation

Loos, Marco, Right of Withdrawal – Interoperability of Directives (October 18, 2013). E. Terryn, G. Straetmans, V. Colaert (eds.), Landmark cases of EU consumer law. In honour of Jules Stuyck, Cambridge/Antwerp/Portland: Intersentia, pp. 545-558; Centre for the Study of European Contract Law Working Paper Series No. 2013-11; Amsterdam Law School Research Paper No. 2013-61. Available at SSRN: https://ssrn.com/abstract=2343565

Marco Loos (Contact Author)

University of Amsterdam - Centre for the Study of European Contract Law (CSECL) ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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