Consumer protection
Directive 2011/83/EU – Article 14(4)(a)(i) and (5) – Right of withdrawal for off-premises contracts
Article 14(4)(a)(i) and (5) of 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, must be interpreted as meaning that it exempts a consumer from any obligation to pay for performance provided pursuant to an off-premises contract, where the trader concerned did not provide him or her with the information referred to in Article 14(4)(a)(i) of that directive and that consumer exercised his or her right of withdrawal after the performance of that contract.
JUDGMENT OF THE COURT (Eighth Chamber) 17 May 2023 In Case C‑97/22
On 6 October 2020, a customer orally concluded a contract with an undertaking for the renovation of the electrical installations in his house, without that undertaking informing him of his right of withdrawal in accordance with Paragraph 246a of the Introductory Law to the Civil Code, in the version applicable to the dispute in the main proceedings.
On 21 December 2020, having performed that contract, the undertaking submitted to the customer the corresponding invoice, which the customer did not pay.
Following the notification by the customer, on 17 March 2021, of the withdrawal from that contract, the undertaking brought an action before the referring court, seeking payment for the service supplied to the customer. The undertaking submits that the assigning undertaking, notwithstanding the withdrawal by the customer, has a right to such a payment, even if the conditions required for that purpose under Paragraph 357(8) of the Civil Code are not satisfied (note the so-called information requirement in terms of German legislation).
The customer contends that, since the assigning undertaking failed to provide him with information on his right of withdrawal, the undertaking has no right to payment of the price of the service supplied under the contract at issue in the main proceedings.
In those circumstances, the court decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 14(5) of Directive [2011/83] … be interpreted as meaning that, in the event that the customer withdraws his or her declaration of intention to conclude an off-premises construction contract only after the trader has already (fully) performed his or her services, [that provision] also precludes any entitlement to compensation or compensation for value on the part of the trader where the conditions of entitlement to [such compensation] … under the rules governing the legal consequences of withdrawal are not met, but the customer’s assets have been enhanced as a result of the trader’s construction work, that is to say, he or she has been enriched?’
By its question, the referring court asks, in essence, whether Article 14(5) of Directive 2011/83 must be interpreted as meaning that it exempts a consumer from any obligation to pay for performance provided pursuant to an off-premises contract, where the trader concerned did not provide him or her with the information referred to in Article 14(4)(a)(i) of that directive and that consumer exercised his or her right of withdrawal after the performance of that contract.
Those latter provisions include Article 14(3) of Directive 2011/83, according to which a consumer who exercises the right of withdrawal after requesting that the trader concerned perform an off-premises contract, during the withdrawal period of 14 days provided for in Article 9 of that directive, must pay to that trader an amount, calculated on the basis of the total price agreed in that contract, which is in proportion to what has been provided until the time when that trader has been informed of the exercise of the right of withdrawal, in comparison with the full coverage of the contract.
However, Article 14(3) of Directive 2011/83 must be read in conjunction with Article 14(4)(a)(i) of that directive. It follows that, if the trader concerned has failed to provide a consumer, before the latter is bound by an off-premises contract, with the information referred to in Article 6(1)(h) or (j) of that directive, as regards, first, the conditions, time limit and procedures for exercising the right of withdrawal and, second, the obligation to pay the amount referred to in Article 14(3) of that directive, that consumer is to bear no cost for the services supplied to him or her, in full or in part, during the withdrawal period. In addition, failure to provide the information referred to in Article 6(1)(h) of Directive 2011/83 gives rise, in accordance with Article 10(1) of that directive, to an extension of 12 months to the initial withdrawal period, from the end of that period.
The right of withdrawal mentioned in Article 14(5) of Directive 2011/83 is designed to protect the consumer in the particular context of concluding an off-premises contract, in which, as recital 21 of that directive states, that consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the relevant trader’s visit. Therefore, the pre-contractual information concerning that right of withdrawal is of fundamental importance for that consumer and enables him or her to make an informed decision on whether or not to conclude the contract (see, by analogy, judgment of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraphs 45 and 46).
It follows that, in a situation where, prior to the conclusion of an off-premises contract within the meaning of Article 2(8) of Directive 2011/83, the trader concerned fails to provide a consumer with the information referred to in Article 6(1)(h) or (j) of that directive, and where that consumer exercises his or her right of withdrawal, the combined provisions of Article 14(4)(a)(i) and (5) of that directive exempt the abovementioned consumer from any obligation to pay the trader the price of the service supplied by that trader during the withdrawal period.
However, the referring court is uncertain as to whether the enhancement of assets thus obtained by the consumer contravenes the principle of the prohibition of unjust enrichment.
In that regard, it should be recalled that the objective of Directive 2011/83 is to provide, in accordance with Article 1 thereof, a high level of consumer protection, as enshrined in Article 169 TFEU and in Article 38 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 10 July 2019, Amazon EU, C‑649/17, EU:C:2019:576, paragraph 39).
n order to achieve that objective, Directive 2011/83 undertakes, as is apparent from recitals 4, 5 and 7 thereof, full harmonisation of certain essential aspects of contracts concluded between consumers and traders (judgment of 13 September 2018, Starman, C‑332/17, EU:C:2018:721, paragraph 27). In that context, Article 4 of Directive 2011/83 requires Member States not to maintain or introduce, in their national law, provisions diverging from the level of consumer protection laid down in that directive, unless otherwise provided for in that directive.
However, the objective laid down by Directive 2011/83 would be undermined if Article 14(5) of that directive were to be interpreted as meaning that it allows the clear provisions of Article 9(1) and of Article 14(4)(a)(i) of that directive to be disapplied, with the result that a consumer, following his or her withdrawal from a service contract concluded off-premises, could incur costs that are not expressly provided for by that directive.
That approach is consistent with the fundamental importance which Directive 2011/83 ascribes to the pre-contractual information regarding the right of withdrawal from off-premises contracts, as referred to in paragraph 26 above. Thus, where the trader concerned has failed to provide a consumer with that information, that trader must bear the costs which he, she or it has incurred due to the performance of the service contract concluded off-premises during the withdrawal period from which that consumer benefits by virtue of Article 9(1) of Directive 2011/83. In those circumstances, DC’s reliance on the principle that penalties should be proportionate, set out in recital 57 of that directive, in order to avoid such costs cannot succeed.
