Official Journal of the European Union

C 383/21

(Case C-143/18) (<span class="super note-tag">1</span>)

(Reference for a preliminary ruling - Consumer protection - Directive 2002/65/EC - Distance consumer loan contract - Right of withdrawal - Exercising the right of withdrawal after the contract has been performed in full at the consumer’s express request - Communication to the consumer of information regarding the right of withdrawal)

(2019/C 383/21)

Language of the case: German

Referring court

Parties to the main proceedings

Applicants: Antonio Romano, Lidia Romano

Defendant: DSL Bank — eine Niederlassung der DB Privat- und Firmenkundenbank AG, formerly DSL Bank — a business division of Deutsche Postbank AG

Operative part of the judgment

1.Article 6(2)(c) of Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directives 90/619/EEC, 97/7/EC and 98/27/EC, read in conjunction with Article 1(1) thereof and in the light of recital 13 of that Directive, must be interpreted as precluding national legislation, as interpreted by national case-law, which, as regards a contract for financial services concluded at a distance between a trader and a consumer, does not exclude the consumer’s right of withdrawal where the contract has been performed in full by both parties at the express request of the consumer, before the consumer exercises his right of withdrawal. It is for the national court to take into account all national law and to apply methods of interpretation recognised by that law in order to achieve an outcome consistent with that provision by amending, where necessary, established national case-law based on an interpretation of national law that is incompatible with that provision;

2.Article 5(1) of Directive 2002/65, read in conjunction with Article 3(1)(3)(a) and Article 6(2)(c) of that directive, must be interpreted as meaning that the obligation of a trader, who concludes a contract for financial services with a consumer at a distance, to communicate in a manner that would be clear and comprehensible to an average consumer who is reasonably well informed and reasonably observant and circumspect, in accordance with the requirements of EU law, before that consumer is bound by a distance contract or offer, the information regarding the existence of the right of withdrawal, is not infringed where that trader informs the consumer that the right of withdrawal does not apply to a contract that had been performed in full by both parties at the express request of the consumer before the consumer exercised his right of withdrawal, even if that information does not accord with national rules, as interpreted by national case-law, which provide that in such a case, the right of withdrawal applies.

(<span class="note">1</span>) OJ C 182, 28.5.2018.