DIRITTO DEI CONSUMI E RESTITUZIONI

DOCTORAL THESIS ABSTRACT (“CONSUMER LAW AND RESTITUTIONS”) THESIS DEFENDANT: MASSIMO COGNOLATO; TUTOR: PROF. FABIO ADDIS The investigation conducted for this PhD thesis started with the analysis of the answers originally provided by national law (and the first draft directives) on doorstep selling, regarding possible restitutionary issues linked to the “consumeristic” right of withdrawal. The 1972 French law on démarchage, only considered the possible limitations that (in terms of effectiveness) the remedy could be subject to, due to the necessity for the consumer (after the exercise of the right of withdrawal) to ask the reimbursement of payments made during the bargaining process that took place away from business premises. Therefore, the (minimal) solution adopted was to suspend the payment of any sum due by the consumer party before the expiration date for the exercise of the right of withdrawal; however, the issue of performance of obligations (primarily, the delivery of goods) by the business was not at all tackled. The 1977 Draft Directive adopted the same approach and dealt with further restitutionary aspects, as well. Article 8 stated that "1. in case of exercise of the right of withdrawal, [payments and] goods received are returned to the seller, at his own expense and risk. 2. The consumer is not required to pay a fee for the normal use of the goods during the period referred to in Article 6 [i.e., prior to exercise of the right of withdrawal]. 3. omissis". Therefore, first, the principle of “freedom” of the right to withdraw and its natura “free of charge” was expressly stated (generally pointing to the irrilevance of reasons underlying the consumer’s choice of withdrawing; and the impossibility, for the business, to impose fees or costs on the basis of the exercise of the right of withdrawal; with the exclusion of certain costs promptly identified by the law: eg., costs for resending the goods by the consumer), and, second, the problem of the “value of benefit” was also addressed (on the basis of use of the delivered goods) as a possible enrichment factor for the consumer; such entry was excluded from those subject to an obligation to return, following the exercise of the right of withdrawal. The following Directive 85/577/Ce on contracts away from business premises did not share the same attention to restitutionary effects of the right of withdrawal. While the lack of the enunciation of the “free of charge” nature of the right of withdrawal was not particularly significant (given that it was implicit in the logic of the legislative intervention and, de facto, “retrospectively” recovered by the following Directives), the fact that regulation of effects of the exercise of right of withdrawal was completely reserved to national legislators represented the main factor that led to a fragmentary assimilation of the new discipline by the european legal systems. On the basis of these considerations the strategic nature of “restitutionary rules” was highlighted, in relation to the aim of granting a (efficient and effective) remedy which acts as a “counter-balance” instrument for contracts concluded in situations where the '"surprise effect", putting consumers at a disadvantage, not only involves the characteristics of goods or services, but the very fact of negotiation itself. 2. It seems appropriate for the restitutionary aspects (in consumer law) not to be tackled in the light of national dogmas (e.g., the principle of 'res perit domino' in relation to the passing of risk) but, rather, under the perspective of the aforementioned “free of charge” nature of remedies (therefore, not limited to the right of withdrawal) granted to consumer parties (see the ruling of the European Court of Justice of 17 April 2008 in Case C-404/06, and the following ruling of 2 September 2009 in Case C-489/07). 3. A survey of the most relevant, existing disciplines on withdrawal by the consumer (Directive 97/7/EC on distance contracts; Directive 94/47/EC and now Directive 2008/122/EC on timesharing; 2002/65/EC on distance selling of financial services; Directive 90/314/EEC on sale of travel packages) showed an increasing awareness in the European legislators about restitutionary aspects and their role in the construction and attunement of the jus poenitendi. This implied (to an extent) the adoption and revision of techniques already employed by national laws (suspension of performance; fixed terms for the performance of the reimbursements after the exercise of the right to withdraw; the failure to perform the reimbursement by the business, in some cases, regarded as a possible cause of invalidity of the contract itself: cfr. art. 67 septies decies of the Italian Consumer Code). It must be added that such a process is far from being completed; in fact, only the most recent rewrite/revision projects of the existing EU consumer law (see the draft Directive of 2008, on the rights of consumers; and the so called "Acquis " Principles) provide solutions about many open issues. In relation to the passing of risk the 2008 Draft Directive accepts the criterion of delivery; it states the responsability of the consumer only for the handling of goods exceeding, for manner and intensity of the use itself, the manipulation necessary to evaluate qualities, nature, and/or functionality of the goods (so called “evaluative” use), but only in cases where such usage implies a decrease in value/integrity of the goods; with apparent exclusion, therefore of any obligation to pay a sum in relation to the “pure” value of benefit. Under a chronological point of view, the autonomy of restitutionary claims is enhanced, in comparison to what happens in legal systems based on the “abstract” and general model of the “undue payment” (confirming, the impression of an adhesion by European rules, to the representation of restitution obligations in terms of a "mirror synallagma"). The restitutionary obligations, under the more recent European consumer law, appear as a result of expiration of a given term (therefore, the proposition of an application/claim/action to such effect is unnecessary, as it is out of court); the aim of the provision of “staggered” terms for the opposed restitutionary obligations, sometimes cumulated with the granting of a soluti retentio in favor of other parties, is to guarantee the effectiveness of performance, by the counterpart, of his obligation to return (or at least the possibility of verifying the correctness of such obligation); finally the criterion of good / bad faith and the one centered on knowledge of the obligation to return are unrelevant (see the Italian Civil Code articles 2033 and 2038). 4. Under European Consumer Law the use of techniques based on the suspension of performance is sectoral. The contract that can be terminated, because of the right of withdrawal, is normally performable beforehand, even in full, with the exception of: A) timesharing contracts. It is impossible for the business to expect advanced payments, deposits, etc.. before the expiry of the term for the withdrawal. Such a choice is justified by the entity of sums usually involved in such transactions. The professional, on the other hand, has a right to obtain the reimbursement for certain expenses (ie, undelayable, actually sustained and documented expenses for the conclusion of contract). On the one hand, therefore, the European legislator wants to protect the consumer from psychological pressure, represented by the risk, even simply theoretical and feared, of seeing the return of the amount paid delayed or impeded by the business. on the other hand, the calculation of mutual reimbursements is postponed until the right of withdrawal is exercised (therefore, the business will not be able to autonomously deduct amounts from the paid sum). B) Service Contracts (distance contracts and distance selling of financial services): it is stated that performance by the business, before the expiration of the right to withdraw, can begin only after a consumer's request (such a request, - according to Directive 97/7/EC – shall preclude the right of withdrawal, even for the future). The solution can be understood keeping in mind the nature of structurally “non returnable” assets and enrichement implied in obligations of facere. In other cases (contracts away from business premises), the solution adopted is a prospective regime for the remedy. Even in this case - given the silence of the (european and national) legislator(s) - should be deemed appropriate that only the consumer’s request can justify the early performance by the business.. The fate of services performed without the consent of the consumer must be determined, for unilateral initiative of the professional. Not only the consumer will be (still) entitled to exercise the right of withdrawal; such “advanced performance” shall be treated, to an extent, as an unsolicited service ("inertia selling") (this happens in the field of distance selling of financial services : see art. 67, 3° co., ter decies of the Italian Consumer Code). This solution seems to be accepted (and generalized) from the draft Directive of 2008 on Consumer Parties’ rights (see Art. 17, 2 ° co. The Draft Directive of 2008, relating to services: the consumer will not bear, in such cases, any "cost" ). In service contracts a strategic role is played by the inclusion, in the informations to be provided by the professional to the consumer, of the criteria for determining the price of single specific performances: such choice ensures that no hidden “penalty” can be applied for the exercise of the right to withdraw. 5. With respect to the “passing of the risk”, the investigation was conducted taking into account both the textual elements under national law (“substantial integrity” as a “condition to exercise the right to withdraw”; with the specification that preservation and usage of the goods with the use of reasonable diligence - today not only in case of lack or erroneous information by the professional – can suffice in this perspective; art. 67, 2° co., of the Italian Consumer Code) and the most relevant recontructions of the “jus poenitendi”. In case the right to withdraw should be constructed as a remedy relating to a contract already concluded (and that can be retrospectively terminated), as a general rule the consumer should bear the risk for loss/damage of goods (due to force majeure); a different solution should be reached under the “suspensive condition” model (see art. 1465, 4° co. of the Italian Civil Code). The so called “procedimental theories” suggest that such contracts are still in fieri, and therefore not yet concluded (sometimes this conclusion is reached making reference to figures such as option contracts or other similar preliminary agreements). One of the consequences of this approach is, quite obviously, that the professional bears the risk (because ownership has not yet passed). The same result is achieved under those reconstructions that underline the need, notwithstanding the nature of the jus poenitendi, to re-evaluate the (national) concepts involved in relation to the passing of the risk issue under consumer law; therefore it is proposed that the regimen of risk should not be strictly regulated pursuant to the “proprietary logic”, the latter being incapable of representing the structure of economic interests expressed and synthesized in the transaction. It is an interesting finding, and one which involves not only the area of contracts “under” a right to withdraw, but (more generally) sale contracts and the associated legal guarantee (under Directive 99/44/EC) as well. In fact, the rule of “conformity with the contract” implies that (in the perspective of “res perit domino” and of “consensualistic” dogma) it should be determined when and how the property is transferred/the dereliction effect takes place (in relation, respectively, to the “substitute” good and the “replaced” good). 6. The problem of the “value of benefit” as a possible, transferable enrichment (after the exercise of the right to withdraw) was discussed in the thesis. Pursuant to the most significant national rules, and considered the most relevant (and recent) projects for modernisation and enhancement of the acquis communautaire (art. 5:105, n. 2 of “Acquis” Principles; art. 17, 2° co. of the Draft Directive of 2008) it has been proposed the irrelevance, under normal conditions, of this accounting item. This solution applies to contracts for the sale of goods; the “serial” nature of the latter emerges in the light of the restitutionary principles as well. The business is mostly interested in the return, after the exercise of the right of withdrawal, of goods in condition of sufficient integrity, in order to allow their reintroduction in the distribution channels; when there is a recurring or structural risk of unjust enrichment of the consumer (at the expenses of the business) the European legislator acts directly, on the basis of exclusion of the right to withdraw (this happens in relation to software and audio-visual products delivered in sealed packages and consequently opened by the client, under Directive 97/7/EC). The situation is different in relation to contracts “incorporating” financial values: see the new Directive 2008/48/EC (consumer credit) and its implementation under Italian Law: Decree of August 13, 2010, n. 141, in particular the new articles 125-ter and 125-quater of the Banking Law [TUB], with regard to the obligation of consumer to pay the interests until the date of exercise of the right of withdrawal; art. 67-ter decies of the Italian Consumer Code and, recently, in relation to the participation of the consumer to equity reits, pursuant to contracts concluded away from business premises, see the Ruling of 15 April 2010 in Case C-215/08). In such cases, under European law, attention is given to the fruitful nature of goods and services object of the contract.