Right of Withdrawal – Interoperability of Directives

This paper is published in the liber amicorum for Jules Stuyck (Leuven). This liber amicorum consists of case notes to landmark cases of the CJEU. The Travel Vac case, which is relatively unknown, stands at the crossroads of unfair commercial practices and consumer contract law, just as the work of Jules Stuyck does. In the Travel Vac case the Court took a number of important decisions. First, where the scope of two directives overlap, both directives are applicable, unless one claims priority. Second, the Travel Vac case makes clear that the application of the right of withdrawal under the Doorstep Selling Directive and the Timeshare Directive may originally be provided to consumers to compensatie consumers from possibly being unduly influenced or manipulated by the trader during the conclusion of the contract, but the consumer need not in fact be mislead or surprised in order to be able to withdraw from the contract. The Travel Vac case thus provides for a clear distinction between rights of withdrawal and defects of consent, such as mistake, fraud and threat. The absence of a need to state reasons for the withdrawal is now codified in the 2011 Consumer Rights Directive. Similarly, the absence of a form requirement – despite the fact that the wording of the Doorstep Selling Directive suggested otherwise – is now codified in the 2011 Directive. Finally, the CJEU could have gone either way with regard to the question whether the trader would have to be compensated by the consumer who wishes to make use of the right of withdrawal. Its decision that the consumer need not pay such compensation seems evident now, but was far from that in 1999. With its decision, the CJEU ensured that consumers would not be discouraged from exercising the right of withdrawal. As such it may have contributed to a large extent to the success of this instruments – in particular in other areas, such as distance selling