Consumer protection law is designed to correct imbalance. It gives consumers a shield against better-informed, better-organised traders, especially in distance selling, where the consumer cannot inspect the service or negotiate face to face. In a recent judgment, the Court of Justice of the European Union addressed three highly important issues relating to consumer protection law. Does the use of a professional intermediary affect consumer status? What exactly qualifies as a distance contract? What limits the exercise of the right of withdrawal? We analyse the judgement below.
ILF’s Hungarian member, Smartlegal Schmidt&Partners summarizes this issue in the article.
- Facts
JK, a private individual and federal civil servant, decided to convert the top floor of her building for residential use. To manage the project, she engaged an architect (“Architect”), who was tasked not only with planning and supervision, but also with obtaining offers from contractors and participating in the conclusion of the contracts by drawing up draft contracts.
Following the tender procedure, the Architect selected Eisenberger Gerüstbau for the making available and erection of scaffolding. The Architect prepared a draft contact and sent it to both parties. There was no indication in that draft that JK would be entitled to withdraw from the contract. The contract was signed by Eisenberger Gerüstbau without amendments, then signed by JK and returned around 15 December 2020. A supplementary addendum for additional loading platforms followed, also concluded by distance communication.
The scaffolding was erected and used. By the end of May 2021, JK had already paid nearly EUR 96,000. Then, in December 2021, when all the construction works envisaged by JK for which scaffolding had been indispensable were completed, JK sought to withdraw from both the main contract and the addendum, refused further payment, and demanded reimbursement of the sums already paid.
- Procedure in Germany
Eisenberger Gerüstbau brought an action against JK before the Berlin Regional Court seeking payment of the fee payable under the contract for the erection of the scaffolding. JK lodged a counterclaim for reimbursement of the progress payments made. The Berlin Regional Court dismissed Eisenberger Gerüstbau’s claim and upheld JK’s counterclaim in its entirety.
Eisenberger Gerüstbau lodged an appeal against the first instance judgement with the Berlin Higher Regional Court. That court had had doubts as to whether, in the sense of Directive 2011/83[i], the contract concluded between JK and Eisenberger Gerüstbau could be regarded as a distance contract at all, and whether JK, who had been assisted in the conclusion of the contract by the Architect, acting as a trader, could be considered a consumer
In addition, even if JK did enjoy a right of withdrawal, the question arose whether the exercise of that right was contrary to the requirement of good faith.
The Berlin Higher Regional Court therefore decided to stay the proceedings and refer the questions to the CJEU.
- Does professional assistance cancel consumer status?
First, the CJEU assessed whether JK who had been assisted by the Architect in the conclusion of the contract with Eisenberger Gerüstbau must be categorised as a consumer.
The Luxembourg Court recalled that the concept of the consumer within the meaning of Directive 2011/83 is objective in nature and is distinct from the concrete knowledge the person in question may have, or from the information that person actually has.[ii]
According to the Court, the fact that JK was assisted by the Architect considered as a trader is not such as to call into question her the weaker position, or her status as a consumer; nor does it mean, moreover, that the contract concerned has a trade purpose.
- Is the contract in question considered as distance contract?
The second question was whether the contract between JK and Eisenberger Gerüstbau must be regarded as having been concluded under an organised distance sales or service-provision scheme, within the meaning of Directive 2011/83.
On the facts described by the Berlin Higher Regional Court, the contract appeared to have been built around a draft prepared under the sole responsibility of the Architect, specifying the precise services requested, which was sent to Eisenberger Gerüstbau by e-mail who simply signed without changes.
On that basis, the CJEU indicated that even assuming that Eisenberger Gerüstbau had an organised distance sales or service-provision scheme, the contract in question did not appear to have been concluded under such an organised distance scheme, although that final assessment remained for the national court.
It shall be mentioned that according to the CJEU, even where the main contract does not qualify as a distance contract, a later addendum may still do so if it independently satisfies the requirements set forth by Directive 2011/83.
- When is the exercise of the right of withdrawal be considered as abusive?
Finally, the most interesting question for the CJEU to decide was whether, in such a case where the consumer has withdrawn from the contract at the end of the extended withdrawal period and at a time when the non-recoverable services have already been provided, the withdrawal has been exercised in an abusive manner.
As background information, it is worth noting that where, in the case of a distance contract, the trader fails to provide the information on the right of withdrawal required under the Directive 2011/83, the original 14-day withdrawal period is extended by 12 months.
The CJEU recalled that the mere fact that a considerable length of time has elapsed between conclusion of the agreement and withdrawal by the consumer, does not mean in itself that the consumer has abusively exercised her right of withdrawal.[iii]
However, according to the CJEU, the referring court shall assess certain factors in relation to whether the right of withdrawal has been exercised in an abusive manner. First, the referring court shall take into account that the contract was concluded on the basis of a draft prepared under the sole responsibility of JK by the Architect being an agent of her choice, with the information given by the latter as regards the precise services expected from Eisenberger Gerüstbau, which the latter then signed without making any amendments.
Second, factors indicating that the time of exercise of the right of withdrawal was expressly decided by JK for the sole purpose of being able to obtain the full benefit of the service that was entirely or almost entirely provided by Eisenberger Gerüstbau, while avoiding having to provide, by way of consideration, any remuneration for that service, may be relevant.
- Comment
The CJEU’s judgement is important as it makes clear that in case of distance contract in the sense of Directive 2011/83, assistance by another trader chosen by the consumer does not affect consumer status. The Court also clarified that only contracts that have been concluded under the trader’s organised distance sales or service-provision scheme, may be considered as distance contracts.
Last but not least, the CJEU emphasized that EU consumer protection rights are intended to protect consumers as the weaker party, not to enable them to obtain an undue advantage to the detriment of the trader. Therefore, where the objective and subjective elements of abuse are present, the trader may legitimately invoke an abusive exercise of the right of withdrawal.
In this article we analysed the judgement C-564/24 of the CJEU.
Written by Anita Vereb
SMARTLEGAL is a team of agile business & litigation lawyers in Budapest, Hungary, helping international corporate clients and individual entrepreneurs doing business in Hungary. For more information please visit our website at this link.
[i] 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
[ii] judgments of 3 September 2015, Costea, C‑110/14,EU:C:2015:538 and of 8 May 2025, Pielatak, C‑410/23, EU:C:2025:325
[iii] judgments of 9 September 2021, Volkswagen Bank and Others, C‑33/20, C‑155/20 and C‑187/20, EU:C:2021:736, and of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014