Alicja Slowik , 25 octobre 2023

In the case Sofatutor delivered on 5 October 2023, the Court of Justice of the EU was called to determine the scope of the consumer’s right to withdraw from the distance contract guaranteed by Article 9 of Directive 2011/83 on consumer rights. The Court ruled that, in principle, the right to withdraw from an initially free and automatically extended subscription made via distance contract is guaranteed only once.

Sofatutor, a German company, operates online learning platforms intended for pupils in Austria. It concludes distance contracts on the basis of its general terms and conditions. The latter provide that when a subscription is booked on those platforms for the first time, it can be tested free of charge for 30 days from the conclusion of the contract and can be terminated without notice at any time during that period. The subscription becomes chargeable only after the expiry of 30 days. If it is not terminated within those 30 days, the paid subscription period agreed at the time of the booking begins to run. In addition, if the paid subscription period expires without being terminated in due time, the subscription concerned is automatically extended for a fixed term.

The Verein für Konsumenteninformation (Association for Consumer Information) decided to bring an action before the Handelsgericht Wien (the Commercial Court) seeking an order requiring Sofatutor, when extending a fixed-term distance contract with consumers, to inform them, of the conditions, time limits and procedures for exercising their right to withdraw from that contract. The association considered that, according to Article 9 of the Consumer Rights Directive, the consumer has a right of withdrawal not only when he or she books a 30-day free trial subscription, but also when that subscription is converted into a standard subscription and when that standard subscription is renewed. Article 9(1) provides that, save in explicitly foreseen exceptions, the consumer is to have a period of 14 days to withdraw from a distance or contract, without giving any reason. The action reached the Oberster Gerichtshof (the Supreme Court) which decided to seize the Court of Justice with the question of whether, under Article 9(1) of the Consumer Rights Directive, the consumer has a new right of withdrawal where a distance contract is “extended automatically”.

The Court of Justice of the EU recognised that the wording of the provision of Austrian law implementing Article 9(1) offers no answer as to whether the consumer has the right of withdrawal only once by virtue of concluding a contract or whether he or she has a new right of withdrawal upon extension of that contract. It then established that the Consumer Rights Directive constitutes an instrument of full harmonisation. Consequently, “the scope of and conditions for exercising the right of withdrawal provided for in Article 9(1) of that directive determine those of the right of withdrawal provided for in the national legislation which transposes that provision into the legal systems of the Member States.”

The Court highlighted that the right of withdrawal aims to “offset the disadvantage for the consumer resulting from a distance contract by granting him or her an appropriate period for reflection during which he or she can examine and test the goods acquired”. The right allows the consumer to become aware, in good time, of the characteristics of the service in situations where it is impossible to test the product in person.

The Court of Justice further insisted upon the requirement to sufficiently inform the consumer about the total price of the services which form the subject of that contract. Under Article 6(1)(e) of the Consumer Rights Directive, before a distance contract is concluded, the trader is obliged to provide the consumer with information on that price in a clear and comprehensible manner. The communication of information regarding the price of the service guarantees the fulfilment of the purpose of the consumer’s right to withdraw from a distance contract. Such a purpose does not therefore justify the consumer concerned having a new right of withdrawal once his or her contract has been converted into a paid contract. However, if the consumer concerned had not been provided with sufficient information regarding the price of the subscription, he or she should be given a new right of withdrawal following the free trial period.

In conclusion, the Court ruled that under Article 9(1) of the Consumer Rights Directive, the consumer’s right to withdraw from a distance contract concerning an initially free and automatically extended subscription is guaranteed only once. Nonetheless, a new right to withdraw shall be conferred on a consumer who, at the moment of the conclusion of the contract, has not been informed in a clear, comprehensible and explicit manner by the trader that, after that initial free period, payment will be required for the performance of services in question.

The Court’s findings may be perceived as a narrow interpretation of Article 9(1) of the Consumer Rights Directive. However, the consumer cannot rely on the right to withdraw from the automatic extension of the subscription only in the situations where he or she has been thoroughly informed about the total price of the subscription at the moment of the conclusion of the contract. In light of the increasing use of distance contracts and the continuous multiplication of platforms offering subscriptions to all kinds of services, new guidelines on the practical scope of the right of withdrawal and the related information requirements significantly enhance legal certainty and can be thus seen as a positive development for both consumers and traders.

Reproduction autorisée avec la référence suivante : Alicja Słowik, Consumers’ right to withdraw from a subscription to an online platform, actualité du CEJE n° 36/2023, 25 octobre 2023, disponible sur www.ceje.ch