Official Journal of the European Union

C 120/6

(Case C-70/11)

2011/C 120/10

Language of the case: Swedish

Parties

Applicant: European Commission (represented by: J. Enegren and M. Owsiany-Hornung, acting as Agents)

Defendant: Kingdom of Sweden

Form of order sought

—Declare that, by providing that a trader, if a consumer exercises his right of withdrawal, can require not only that the consumer pay for that part of the financial service which has already been supplied but can also require payment of reasonable costs for services relating to the time before the trader accepted the consumer’s confirmation that he had withdrawn from the contract, the Kingdom of Sweden has failed to fulfil its obligations under Directive 2002/65/EC of the European Parliament and of the Council (1) of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC, and

—order the Kingdom of Sweden to pay the costs.

Pleas in law and main arguments

In accordance with recital 13 in the preamble to the directive, Member States should not be able to adopt provisions other than those laid down in this Directive in the fields it harmonises, unless otherwise specifically indicated in it.

It is apparent from Article 6(1) of the directive that the Member States are to ensure that the consumer has a period of 14 calendar days to withdraw from the contract without penalty and without giving any reason.

Under Article 7(1) of the directive, when the consumer exercises his right of withdrawal he may only be required to pay for the service actually provided by the supplier in accordance with the distance contract.

It follows from the second sentence of Chapter 3, Paragraph 11, of the Law on distance and doorstep selling (2005:59) (distans- och hemförsäljningslagen) that traders, in addition to payment for the service actually provided, can also require payment for reasonable costs.

In the legislation which implements the directive, Sweden has thus introduced provisions which go beyond what is laid down in Article 7(1) of the directive as regards the consumer’s right of withdrawal.

In all the circumstances, Sweden does not appear to have transposed Article 7(1) of the directive with the clarity and precision laid down by the Court in order that the requirement for legal certainty be met.

(1) OJ L 271, p. 16.