Case C-205/07, Gysbrechts and Santurel-Inter

Gysbrechts was the business manager of Santurel, a company specialising in the wholesale and retail sale of food supplements. Most of the sales were done over the internet, with the goods ordered being dispatched by post. Following a complaint, the Belgian Economic Inspection Board carried out an investigation as a result of which Santurel-Inter and Gysbrechts were found guilty of offences under the distance-selling provisions of the Belgian Law on consumer protection. The offences consisted in failure to comply with art. 80(3) of the Belgian Law on consumer protection, which prohibited demands for an advance or payment from the consumer before the expiry of the period for withdrawal of seven working days. More specifically, the issue was the interpretation of that provision by the Belgian authorities to the effect that it was prohibited to require a consumer to provide his credit card number before the expiry of the period for withdrawal of seven working days. Gysbrechts and Santurel were found to have required consumers not residing in Belgium to provide the number of their payment card before expiry of the period for withdrawal. In appeal, the national court asked whether articles 28 to 30 EC precluded a provision relating to distance selling which prohibited a supplier from requiring an advance or any payment before expiry of the period for withdrawal.

No exhaustive harmonisation
The prohibition laid down by art. 80(3) of the Law on consumer protection came within the scope of Directive 97/7. A national measure in an area which had been the subject of exhaustive harmonisation at Community level must be assessed in the light of the provisions of that harmonising measure and not those of the Treaty. However, the Court held that in the present case, it was clear that the harmonisation effected by Directive 97/7 was not exhaustive. Member States might introduce or maintain, in the area covered by the directive, more stringent provisions to ensure a higher level of consumer protection, provided that power was exercised with due regard for the Treaty. It followed that such a provision did not dispense with the need to examine the compatibility of the national measure at issue in the main proceedings with arts 28 to 30 EC. (see also:
Case C‑322/01 Deutscher Apothekerverband [2003]).

Infringement of Article 29 EC
The Court held that the compatibility of a provision such as that at issue in the main proceedings with art. 29 EC must be examined by taking into account also the national authorities’ interpretation of it, namely that suppliers were not allowed to require that consumers provided their payment card number, even though the suppliers undertook not to use it before expiry of the period for withdrawal. Even if a prohibition such as that at issue in the main proceedings was applicable to all traders active in the national territory, its actual effect was none the less greater on goods leaving the market of the exporting Member State than on the marketing of goods in the domestic market of that Member State. Therefore, a national measure prohibiting a supplier in a distance sale from requiring an advance or any payment before expiry of the period for withdrawal constituted a measure having equivalent effect to a quantitative restriction on exports. The same was true of a measure prohibiting a supplier from requiring that consumers provided their payment card number, even if the supplier undertook not to use it to collect payment before expiry of the period for withdrawal.

The Court reiterated that consumer protection might constitute a legitimate objective in the public interest capable of justifying a restriction on the free movement of goods. It remained to be determined whether that provision, as it was interpreted by the national authorities, was proportionate to the objective pursued. In order for national rules to comply with the principle of proportionality, it must be ascertained not only whether the means which they employed were suitable for the purpose of ensuring the attainment of the objectives pursued but also whether those means did not go beyond what was necessary to attain those objectives
(
Joined Cases C-158/04 and C-159/04 Alfa Vita Vassilopoulos and Carrefour-Marinopoulos [2006]).

The Court found that the prohibition on requiring an advance or any payment before expiry of the period for withdrawal and the prohibition on requesting that purchasers provided their payment card number were capable of ensuring a high level of consumer protection in distance selling, in particular in relation to the exercise of the right to withdraw. However, the imposition on a supplier of a prohibition on requiring that a consumer provided his payment card number went beyond what was necessary to attain the objective pursued. The value of the prohibition on a supplier requiring a consumer’s payment card number resided only in the fact that it eliminated the risk that the supplier might collect the price before expiry of the period for withdrawal. If, however, that risk materialised, the supplier’s action was, in itself, a contravention of the prohibition laid down by the provision at issue in the main proceedings, a prohibition which must be regarded as an appropriate and proportionate measure to attain the objective pursued.

It followed art. 29 EC did not preclude national rules which prohibited a supplier, in cross-border distance selling, from requiring an advance or any payment from a consumer before expiry of the withdrawal period, but did preclude a prohibition, under those rules, on requesting, before expiry of that period, the number of the consumer’s payment card.


Text of Judgment