유럽소비자계약법에 있어서 철회권에 관한 고찰

The right of withdrawal is still a somewhat problematic legal instrument in many EU States. One of the main problems is that the different European directives that have introduced cooling off-periods, have cooling off-periods of rather different lengths. In this respect, the directives regulating the right of withdrawal lack coherence. The European Commission has recently raised the question whether the duration and modalities of the withdrawal periods should be harmonized and standardized. In this article, I will examine whether such is possible. The main focus of the article is, however, on a more preliminary question, under what circumstances the right of withdrawal is an effective and useful means of consumer protection. In this article, I will try to answer that question for the rights of withdrawal in the European directives mentioned above. This article is based on an analysis of the respective directives introducing a right of withdrawal and a cooling off-period and on their implementation in the German and Dutch legal systems, and on comparative research on Dutch and German law on the matter. From the article it will be clear that even though the rights of withdrawal, as a rule, function relatively well, a more uniform regulation of the right of withdrawal - including a unitary terminology - in European legislation seems feasible. It has been argued that a uniform cooling off-period of two weeks from the moment when the contract is concluded is to be preferred over the existing situation. In order for the right of withdrawal to be effective, the consumer must be made aware of his right of withdrawal by the seller or service provider. Of course, such information must be provided in a clear manner and in clear and intelligible language, in at least the language in which the contract was concluded. Extension of the cooling off-period if the seller or service provider does not properly inform the consumer thereof is an effective incentive to ensure that the seller or service provider will perform his obligation to inform. However, it was argued, as law at some point in time needs to resign itself to reality, a maximum period for the cooling off-period is needed for reasons of legal certainty. The notice of withdrawal should not be subject to any form requirement. However, if the consumer chooses to send a notice in writing or on another durable medium for evidentiary reasons, the dispatch principle should apply as regards the timeliness of the withdrawal. Nevertheless, these observations alone do not suffice to propose a coherent, uniform regime for cooling off-periods. If the European legislator really aspires to develop such a regime, it will of course have to take into account the need to provide clear answers as to the consequences of timely withdrawal, especially as regards the return of goods delivered and money paid, as well as the consequences regarding contracts that are connected with the contract from which the consumer has successfully withdrawn.