No extended revocation period if the telephone number is not stated in the instructions on the right to revoke

In its decision dated 14 September 2023, the Regional Court of Münster clearly rejects a perceived “Widerrufsjoker” (revocation joker).

Facts of the case

In a decision dated 14 September 2023, the Regional Court of Münster dismissed a claim by a car buyer for rescission of the purchase contract after revocation. The plaintiff had declared his revocation to the seller more than a year after purchasing the vehicle and demanded a full refund of the purchase price for the vehicle. The plaintiff argued that the instructions on the right to revoke did not state the seller’s telephone number at the time of purchase, meaning that the 14-day revocation period had not started to run. Revocation was still possible up to one year and 14 days after the vehicle had been handed over. Compensation for lost value was also not payable due to the lack of information in the instructions.

Decision of the Court

The court dismissed the claim and gave strictly formal reasons for the dismissal. The court came to the conclusion that the seller’s instructions on the right to revoke met the legal requirements and that the plaintiff’s revocation was therefore time-barred.

Contrary to the plaintiff’s opinion, the requirements of Article 246a section 1paragraph 2 1 No. 1 EGBGB (old version of the Introductory Act to the Civil Code) and not Article 246a section 1 paragraph 1 EGBGB, which requires the provision of a telephone number, should be taken into account for the start of the revocation period in accordance with section 356 paragraph 3 BGB. It was therefore sufficient for the seller to provide information on the conditions, deadlines and procedure for exercising the right of revocation and on the model revocation form in accordance with Annex 2 EGBGB. On the other hand, there was no need to provide information about the form of revocation, so that there was also no need to provide information about revocation by telephone or a telephone number.

The court also underpins its statements with the systematic argument that the legislator has deliberately removed the information obligations for distance selling contracts, in particular regarding the telephone number, from the reference in Section 356 (3) BGB and does not require this information for the start of the revocation period. In the opinion of the court, this is also supported by the comparison between the regulations on distance selling contracts and the regulations on contracts for financial services.

Classification of the decision

The decision of the Regional Court of Münster is to be endorsed. The “Widerrufsjoker” mentioned at the beginning - a term that appears time and again in the legal world, (presumably) to signal to consumers that a contract can be revoked and rescinded even after the 14-day period has expired without any great difficulty - did not hold water before the Regional Court of Münster. However, this statement should not detract from the fact that the decision should be taken seriously. The plaintiff’s legal opinion was probably due to the fact that he had not made a clear distinction between the model revocation form and the model revocation instructions. While the model revocation form is necessary for proper instruction on the right of revocation and does not require a telephone number, the model revocation instruction is not mandatory. A missing telephone number may have consequences under competition law, but according to the present decision, it is irrelevant for the start of the revocation period.

In addition to the convincing arguments of the court, which are strictly based on the law itself and thus show that a careful analysis is required, particularly in the area of consumer (revocation) rights, due to the high density of regulations and a large number of different constellations, the Regional Court of Münster’s  decision makes it clear that even 10 years after the implementation of the EU Consumer Rights Directive (CRD) into national law, there are still questions of interpretation regarding supposedly “less relevant” individual aspects. However, the issue of telephone numbers stands out in particular.

The CJEU (CJEU, 10.7.2019, C-649/17 - vzbv/Amazon EU Sàrl and CJEU, 14.5.2020, C-266/19 - EIS GmbH/TO) has already had to deal twice with questions referred for a preliminary ruling regarding the necessity of providing a telephone number in the context of competition law. This aspect was also controversial for a long time in the area of insurance law until the decision of the Federal Court of Justice on February 15, 2023 - IV ZR 353/21. Naturally, the decisions made in the aforementioned proceedings are not directly transferable when it comes to assessing the specific legal question to be judged by the Regional Court of Münster, which is embedded in the context of the right of revocation in distance selling.

In addition to the arguments supporting the decision of the Regional Court, which speak against an extension of the revocation period if the telephone number is not stated in the revocation instructions, the following fundamental considerations should also be taken into account:

• Insofar as the standards of national law in question are based on European legal acts, it is imperative that the compatibility of those very national legal acts with EU law be taken into account and that national law be interpreted in accordance with EU law in the event of contradictions.
• Revocation by means of a telephone call is not recommended from the consumer’s point of view because it is almost impossible to prove receipt of the revocation. Against this background, it seems doubtful whether the European legislator wanted to impose this risk on the consumer at all.
• It should not be ignored that the recitals to the Consumer Rights Directive state that it is essential for the establishment of a genuine internal market that the best possible balance is struck between a high level of consumer protection and the competitiveness of companies. Against this background, it seems doubtful that the failure to provide a telephone number should mean that the revocation period for a distance contract does not begin to run. The marginal additional advantage for the consumer - if such an advantage is to be assumed - is offset by much greater competitive disadvantages for the company.

Outlook

The topic of instructions on the right to revoke, information and deadlines remains a  perennial issue in case law. Consumers are advised to treat blanket statements on so-called “revocation jokers” with the necessary skepticism. At the same time, companies should design and use the information and instructions they provide with the necessary care and tailored to their individual business areas in legal transactions with consumers in order to avoid exposing themselves to unnecessary points of attack.