Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 17 December 2019 — Stichting Waternet v MG
(Case C-922/19)
Language of the case: Dutch
Referring court
Hoge Raad der Nederlanden
Parties to the main proceedings
Applicant: Stichting Waternet
Defendant: MG
Questions referred
Must Article 9 of the Distance Selling Directive 1 and Article 27 of the Consumer Rights Directive, 2 in conjunction with Article 5(5) and point 29 of Annex I to the Unfair Commercial Practices Directive, be interpreted as meaning that there is an unsolicited supply of drinking water within the meaning of those provisions if the commercial practice of the drinking water company consists of the following:
(i) the drinking water company is, by law, (a) exclusively authorised and obliged to supply drinking water within its distribution area by means of pipes, and is (b) obliged to make an offer to connect to the public drinking water supply those making a request to that end and to make an offer to supply drinking water;
(ii) the drinking water company maintains the connection between the consumer’s home and the public drinking water supply as it existed before the consumer came into occupation of the dwelling, as a result of which there is pressure in the water pipes in the consumer’s dwelling, and as a result of which the consumer, after performing an active and conscious act — consisting of turning on the tap or an equivalent act — can consume drinking water if desired, even after the consumer has indicated that he does not wish to enter into a contract for the supply of drinking water; and
(iii) the drinking water company charges costs in so far as the consumer has actually consumed drinking water by performing an active and conscious act, whereby the rates applied cover costs, are transparent and non-discriminatory and are monitored by the authorities?
Do Article 9 of the Distance Selling Directive and Article 27 of the Consumer Rights Directive, in conjunction with Article 5(5) and point 29 of Annex I to the Unfair Commercial Practices Directive, 3 preclude the assumption that a contract for the supply of drinking water is concluded between the drinking water company and the consumer if (i) the consumer, like the average consumer in the Netherlands, knows that there are costs associated with supplying drinking water, (ii) the consumer nevertheless consistently consumes drinking water over a long period of time, (iii) the consumer, even after receiving a welcome letter, invoices and reminders from the drinking water company, continues his water consumption, and (iv) the consumer, after judicial authorisation has been granted to terminate the dwelling’s drinking water connection, lets it be known that he does in fact wish to have a contract with the drinking water company?
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1 Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts — Statement by the Council and the Parliament re Article 6 (1) — Statement by the Commission re Article 3 (1), first indent (OJ 1997 L 144, p. 19).
2 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).
3 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).