Opinion of Advocate General Biondi delivered on 18 September 2025
Opinion of Advocate General Biondi delivered on 18 September 2025
Data
- Case date
- 18 september 2025
Uitspraak
Provisional text
OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 18 September 2025 (1)
Case C‑564/24
Eisenberger Gerüstbau GmbH
v
JK
(Request for a preliminary ruling submitted by the Kammergericht (Higher Regional Court, Berlin, Germany))
( Reference for a preliminary ruling – Distance contract concluded between a trader and a consumer – Consumer’s right of withdrawal – Trader’s right to compensation – Contact established between the consumer and the trader via a third party appointed by the consumer )
I. Introduction
1. The questions concerning the interpretation of Directive 2011/83 (2) submitted by the national court mainly concern the definition of the concept of ‘distance contract’ and how to strike the right balance between the different objectives pursued by the EU legislature in the event of withdrawal by a consumer. The primary objective of such a directive is obvious: consumer protection. However, this must be tempered by the need to preserve legal certainty and good faith between the parties entertaining contractual relations. The case thus offers the Court an opportunity to clarify significant aspects relating to the implementation of the directive.
2. By its questions, the referring court asks, in essence, whether the concept of ‘distance contract’ referred to in Article 2 of Directive 2011/83 may also cover a situation where a consumer, prior to the conclusion of a contract, has availed him- or herself of the assistance of a third-party trader, and whether a subsequent agreement on additional services may qualify as a distance contract. Lastly, the question that seems most significant to me concerns the situation where a consumer withdraws following the performance of the contract, even though he or she lacks the information on withdrawal required by law; the question arises as to whether he or she may be obliged to reimburse the trader to a reasonable extent, as otherwise there may be an abuse of right.
II. Legal context
A. European Union law
3. Article 2 of Directive 2011/83 provides as follows:
‘For the purpose of this Directive, the following definitions shall apply:
(1) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession;
(2) “trader” means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive;
…
(7) “distance contract” means any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded’.
4. Article 6 of that directive, headed ‘Information requirements for distance and off-premises contracts’, reads as follows:
‘1. Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:
…
(h) where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with Article 11(1), as well as the model withdrawal form set out in Annex I(B);
(i) where applicable, that the consumer will have to bear the cost of returning the goods in case of withdrawal and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;
(j) that, if the consumer exercises the right of withdrawal after having made a request in accordance with Article 7(3) or Article 8(8), the consumer shall be liable to pay the trader reasonable costs in accordance with Article 14(3);
(k) where a right of withdrawal is not provided for in accordance with Article 16, the information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses his right of withdrawal;
…’.
5. Article 9 of Directive 2011/83, headed ‘Right of withdrawal’, provides as follows in paragraph 1 thereof:
‘1. Save where the exceptions provided for in Article 16 apply, the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason, and without incurring any costs other than those provided for in Article 13(2) and Article 14’.
6. Article 10 of Directive 2011/83, headed ‘Omission of information on the right of withdrawal’, reads as follows:
‘1. If the trader has not provided the consumer with the information on the right of withdrawal as required by point (h) of Article 6(1), the withdrawal period shall expire 12 months from the end of the initial withdrawal period, as determined in accordance with Article 9(2).
2. If the trader has provided the consumer with the information provided for in paragraph 1 of this Article within 12 months from the day referred to in Article 9(2), the withdrawal period shall expire 14 days or, in cases where Member States have adopted rules in accordance with Article 9(1a), 30 days after the day upon which the consumer receives that information’.
7. Article 12 of that directive, headed ‘Effects of withdrawal’, provides that:
‘The exercise of the right of withdrawal shall terminate the obligations of the parties:
(a) to perform the distance or off-premises contract; or
(b) to conclude the distance or off-premises contract, in cases where an offer was made by the consumer’.
8. Article 13 of Directive 2011/83, headed ‘Obligations of the trader in the event of withdrawal’, reads as follows:
‘1. The trader shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract in accordance with Article 11.
…’.
9. Article 14 of that directive, headed ‘Obligations of the consumer in the event of withdrawal’, provides as follows, in paragraph 4 thereof:
‘4. The consumer shall bear no cost for:
(a) the performance of services or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, in full or in part, during the withdrawal period, where:
(i) the trader has failed to provide information in accordance with points (h) or (j) of Article 6(1); or
(ii) the consumer has not expressly requested performance to begin during the withdrawal period in accordance with Article 7(3) and Article 8(8); or
…’.
B. German law
10. Paragraph 242 of the Bürgerliches Gesetzbuch (3) (German Civil Code; ‘the BGB’) provides as follows:
‘The debtor shall be bound to perform in good faith, taking account of commercial usage’.
11. Paragraph 312c of the BGB, headed ‘Distance contracts’, reads as follows:
‘(1) “Distance contracts” means contracts where the trader, or a person acting in the trader’s name or on that trader’s behalf, and the consumer exclusively use means of distance communication for the negotiation and conclusion of the contract, except where the conclusion of the contract does not take place under an organised distance sales or service-provision scheme.
(2) Means of distance communication within the meaning of this [Code] are all means of communication that can be used for the preparation or conclusion of a contract without the simultaneous physical presence of the contracting parties, such as letters, catalogues, telephone calls, faxes, electronic mail, messages sent via a mobile telephone service (SMS), as well as broadcasting and the media’.
12. Paragraph 357 of the BGB, headed ‘Legal consequences of withdrawing from off-premises contracts and distance contracts, with the exception of contracts for financial services’, reads as follows:
‘(1) The benefits received must be returned within 14 days at the latest.
…
(8) Where the consumer withdraws from a contract for the provision of services …, the consumer must pay compensation for the service provided until withdrawal, if the consumer has expressly requested the trader to begin performance before the expiry of the withdrawal period. The right arising under the first sentence exists only if the trader has duly informed the consumer pursuant to points 1 and 3 of the first sentence of Article 246a(1)(2) of the Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to [the BGB]). … In calculating the compensation, the total price agreed upon shall be used as a basis. If the total price agreed upon is excessive, the compensation must be calculated on the basis of the market value of the service provided’.
III. The main proceedings and the questions referred for a preliminary ruling
13. In 2020, the applicant at first instance and respondent before the referring court, JK, the owner of a multi-storey building in Berlin, decided to add two new floors to that building. To that end, she entrusted an architect with planning and directing the works and with assisting in the conclusion of the relevant contracts.
14. After selecting Eisenberger Gerüstbau GmbH (‘Eisenberger’) as the undertaking responsible for installing the scaffolding, the architect sent by e-mail both to Eisenberger and JK a draft contract he had prepared. This draft, however, contained no indication of JK’s right of withdrawal and was signed by both parties without any amendments in December 2020.
15. Once the scaffolding had been installed, in January 2021, Eisenberger submitted a supplementary offer by e-mail to JK for the installation of two further scaffolding structures. This offer was signed by JK by means of a specific contract, again by e-mail.
16. Subsequently, Eisenberger granted JK the use of the scaffolding for the construction works planned for the building.
17. In December 2021, despite the fact that the construction works for which the scaffolding was required had been completed, JK stated that she was withdrawing from the contract for the supply of scaffolding, including the supplementary contract, refusing to make further payments and demanding repayment of the sum paid on the basis of invoices issued up to May 2021.
18. After dismantling the scaffolding at JK’s request, Eisenberger then sued JK before the Landgericht Berlin (Regional Court, Berlin, Germany) to obtain payment of the outstanding remuneration. In the same proceedings, JK brought a counterclaim seeking reimbursement of the sums hitherto paid.
19. The Landgericht Berlin (Regional Court, Berlin), upholding the counterclaim, dismissed the action by means of a judgment issued on 19 May 2023, against which Eisenberger decided to appeal.
20. The Kammergericht (Higher Regional Court, Berlin, Germany) decided to stay the proceedings and to refer four questions to the Court of Justice for a preliminary ruling:
‘(1) Is a contract a distance contract within the meaning of Article 2(7) of [Directive 2011/83] for which a right of withdrawal exists under Article 9(1) of that directive if, before or at the time of conclusion of the contract, the consumer is assisted by a trader whom he or she has commissioned independently of the service provider?
(2) If the Court answers Question 1 in the affirmative:
Is a contract likewise a distance contract within the meaning of Article 2(7) of [Directive 2011/83] for which a right of withdrawal exists under Article 9(1) of that directive where one of the following additional conditions is fulfilled?
(a) It was the trader assisting the consumer who took the initiative to establish the contact between the consumer and the service provider[;]
(b) Prior to the conclusion of the contract, the trader assisting the consumer influenced key parts of its content, for example by drawing up specifications or providing a draft contract.
(3) If the Court were to consider that, in the cases referred to in Questions 1, 2(a) or (b) above, the contract were not a distance contract for which a right of withdrawal existed:
If, after the conclusion of that contract, the parties, again with the exclusive use of means of distance communication, conclude another agreement, the object of which is the provision of additional services by the service provider which are of lesser importance than those covered by the first contract:
Is that additional agreement in itself a distance contract within the meaning of Article 2(7) of [Directive 2011/83] for which a right of withdrawal exists under Article 9(1) of that directive, or is it, like the main contract which it supplements, not subject to a right of withdrawal as a distance contract?
(4) If the consumer has exercised his or her right of withdrawal under a distance contract for which such a right exists after the other party to the contract has already provided services:
Notwithstanding Article 14(4)(a) and (5) of [Directive 2011/83], can the consumer be required to pay the trader adequately for the services he or she has provided if any other outcome would, in the light of all the circumstances of the case, be abusive or constitute a breach of good faith?’
IV. Analysis
21. The first three questions referred for a preliminary ruling concern issues of definition, inasmuch as they ask the Court to clarify the scope of the definitions of ‘consumer’ and ‘distance contract’: a useful answer can, in my view, be given without undue difficulty on the basis of the existing case-law. As mentioned, the fourth question referred constitutes the focal point of the case because, in my view, it asks the Court about a delicate issue: how to reconcile the consumer’s right of withdrawal – which, in the event of a lack of information from the trader, is extended to one year from the conclusion of the contract – with the protection of the trader’s legitimate expectations and the principle of contractual good faith. Indeed, the due respect for the rights of the consumer, as the weaker party to a contract, cannot fail to be limited in cases of ‘abuse’, which EU law cannot in any way protect. This is a fortiori the case where the obligation assumed by the trader has, in substance, been fully performed.
A. The first and second questions referred
22. In order to answer the first and second questions raised by the referring court, it is necessary to ascertain whether, for the purposes of Directive 2011/83, a contract concluded by email between a trader and a consumer assisted by a third-party trader prior to the conclusion of the contract can be classified as a distance contract for the purposes of the application or non-application of the right of withdrawal in accordance with Article 9(1) of Directive 2011/83. (4)
23. In order for a contract to qualify as a ‘distance contract’, four conditions must be cumulatively fulfilled: (i) the contract must be concluded between a consumer and a trader; (ii) it must be concluded under an organised distance sales or service-provision scheme; (iii) the conclusion must take place without the simultaneous physical presence of the trader and the consumer; and (iv) the contractual relationship must be determined through the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded. (5)
24. As regards the condition under (i), (6) it must first be analysed whether JK can be defined as a consumer despite the assistance provided by the architect prior to the conclusion of the contract.
25. According to Directive 2011/83, a consumer is any natural person who, in contracts covered by that directive, is acting for purposes which are outside his or her trade, business, craft or profession. (7) A trader is any natural person or any legal person who is acting, including through any other person acting in his, her or its name or on his, her or its behalf, for purposes relating to his, her or its trade, business, craft or profession in relation to contracts covered by the directive. (8)
26. The concept of ‘consumer’ with particular reference to contractual protection is an autonomous concept of EU law which must be given a uniform interpretation. (9) In that regard, the definition set out in the Directive on Unfair Terms in Consumer Contracts (10) as interpreted by the Court is particularly relevant: the concept of ‘consumer’ must be assessed by reference to a functional criterion, consisting in an assessment of whether the contractual relation at issue has arisen in the course of activities outside a trade, business or profession. (11) In addition, the Court has clarified that the concept of consumer 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. (12)
27. It is not actually clear from the case file whether the performance was requested for personal purposes or for commercial purposes (for example, for the purposes of rental or sale), or for both purposes. On this point, as stated in recital 17 of Directive 2011/83, in the case of dual-purpose contracts, where the contract is concluded for purposes partly within and partly outside the person’s trade, it is necessary to assess whether the trade purpose is predominant in the overall context of the contract. If it is so limited as not to be predominant, that person may be considered as a consumer. (13)
28. In the case at hand, my view is that establishing whether the individual concerned is a consumer is a matter for the national court, which will have to carry out an overall assessment of all the relevant factors. In particular, consideration will have to be given to the terms of the contract – with particular attention being paid to the nature of the goods or services covered by that contract – which are suitable to demonstrate the purposes for which the goods or services were acquired. (14)
29. With particular reference to the assistance provided by the architect to the consumer, that circumstance, in my view, does not automatically make her less weak or more experienced and therefore does not directly affect her ‘consumer’ status. Indeed, according to settled case-law, a consumer is in a situation of inferiority compared to a trader, being ‘economically weaker and less experienced in legal matters than the other party to the contract’, (15) regardless of the technical expertise that consumer may possess. (16)
30. On the basis of the foregoing considerations, I am of the view that the fact that JK was assisted by a third-party trader prior to the conclusion of the contract does not, in itself, preclude her from being classified as a ‘consumer’ within the meaning of Article 2(1) of Directive 2011/83.
31. With regard to the remaining conditions (17) set out in Article 2(7) of that directive, which it is necessary to analyse together, the directive’s provisions on distance contracts are intended to avoid a situation where the use of means of distance communication leads to less information being provided to a consumer – in particular with regard to the information referred to under Article 6 of that directive, which is of fundamental importance for consumers. (18)
32. As set out in recital 20 of Directive 2011/83, the concept of ‘distance contract’ should not include those cases where the contract was negotiated at the trader’s premises and finally concluded by means of distance communication; nor should it include cases where the contract was initiated by means of distance communication but was finally concluded at the trader’s premises. Moreover, the same recital makes clear that the notion of an organised distance sales or service-provision scheme should include those schemes offered by a third party other than the trader, but used by the trader, such as an online platform. It should not, however, cover cases where websites merely offer information on the trader, his, her or its goods and/or services and his, her or its contact details. (19)
33. In the case at hand, subject to review by the referring court, it appears that the architect, instructed by the consumer to assist in the conclusion of the contract by preparing drafts, proceeded to contact Eisenberger, asking it to send a quote. It emerges from the case file that the architect subsequently sent both parties the draft contract by email, with such draft contract not containing any information on the consumer’s right of withdrawal. (20) Eisenberger then signed the contract without any changes, then sending it to the consumer, who sent the signed contract back by post. These factual elements seem to indicate that the contract was concluded exclusively by means of distance communication, without the simultaneous physical presence of the trader and the consumer. On the other hand, there is no information in the case file about an organised distance sales or service-provision scheme put in place by the trader, such as whether it was the trader who encouraged the conclusion of the contract by means of distance communication.
34. It could therefore be inferred that the architect merely enabled the consumer to gather information about the subject matter of the contract, but did not negotiate with any of the parties to the contract and did not provide the consumer with the information referred to in Article 6 of Directive 2011/83. In a similar case, the Court held that if these conditions were met, the contract in question could be considered a ‘distance contract’. (21)
35. In the light of the foregoing, I take the view that, subject to review by the national referring court as to whether the four conditions (22) for defining a distance contract have been satisfied, a contract such as that concluded by Eisenberger and the applicant at first instance and respondent before the referring court can indeed be regarded as a ‘distance contract’ within the meaning of Article 2(7) of Directive 2011/83, entailing the possibility of withdrawing from that contract in accordance with Article 9(1) thereof.
B. The third question referred for a preliminary ruling
36. By its third question, the referring court asks, in essence, whether, where the parties conclude, exclusively using means of distance communication, an agreement on services supplementary to those provided for by a contract which is not a distance contract, that agreement constitutes a distance contract within the meaning of Article 2(7) of Directive 2011/83.
37. It should first be noted that this question is relevant only in case of a negative answer to the first two questions, that is to say, if the original contract cannot be defined as a ‘distance contract’. However, I shall make just a few observations below.
38. Subject to verification by the referring court, I am of the view that the conditions for the definition of a distance contract may also apply to a subsequent supplementary agreement. (23) Following the conclusion of the contract and the installation of the scaffolding, Eisenberger sent JK an email with an additional quote for two additional scaffolding structures. The consumer accepted the quote by returning it via e-mail.
39. As stated in recital 14 (24) of Directive 2011/83, as well as in Article 3(5) thereof, (25) national law is to be left unaffected for those aspects of contract law that are not regulated by that directive.
40. It follows that aspects of contract law such as the nature of a supplementary agreement – which is not regulated by Directive 2011/83 – should be regulated by national law.
41. On the basis of these considerations, assuming that the main contract can be qualified as a distance contract, it is for the national referring court to review the nature of the supplementary agreement.
C. The fourth question referred for a preliminary ruling
42. The fourth question provides the Court with an opportunity to clarify the provisions of Directive 2011/83 concerning the right of withdrawal, which relate to the case in the main proceedings.
43. As a preliminary point, it should be mentioned that, with reference to a case concerning off-premises contracts governed by Directive 2011/83, the Court concluded that Article 14(4)(a)(i) and (5) of that directive must be interpreted as meaning that the consumer is exempted from any obligation to pay for performance provided where the trader concerned did not provide him or her with the information referred to in Article 14(4)(a)(i) thereof and the consumer exercised his or her right of withdrawal after the performance of the contract. This is because of ‘the fundamental importance which Directive 2011/83 ascribes to the pre-contractual information regarding the right of withdrawal from off-premises contracts’. (26)
44. However, the Court clarified, with reference to a case relating to the provisions of Directive 2008/48 on consumer credit agreements, (27) that ‘the full performance of the credit agreement causes the right of withdrawal to be extinguished.’ (28) More specifically, the Court stated that ‘since the performance of a contract constitutes the natural mechanism for extinguishing contractual obligations, … a consumer can no longer rely on his or her right of withdrawal … once the credit agreement has been performed in full by the parties and the mutual obligations arising from that agreement have therefore come to an end’. (29)
45. The case at hand offers an interesting opportunity to interpret the provisions of Directive 2011/83 in a way that balances the various potentially conflicting interests involved. On the one hand, the necessary dutiful protection of the consumer in the delicate moment preceding the conclusion of the contract, and thus the importance of the provisions that give him or her additional rights in the event of omission of relevant information by the trader: in the case at hand, the extension of the term for withdrawal to one year. (30) On the other hand, the need for EU law not to lend itself to instances of abusive conduct which, in view of all the circumstances of the case, could lead to disproportionate protection of consumer rights and unjustified harm to the trader.
46. The referring court wonders, in fact, whether the fact that the consumer is relying on the exclusion of repayment of the sums may be contrary to good faith where four conditions are satisfied cumulatively: (i) it is not possible to establish that the trader has intentionally failed to provide information to the consumer in accordance with Article 14(4)(a) of Directive 2011/83; (ii) the trader has provided the consumer with a service that cannot be returned for factual or economic reasons; (iii) the consumer now uses that service permanently or has appropriated the value inherent in the service; and (iv) the amount of the compensation is not excessively high.
47. In essence, the referring court asks whether, in assessing all the circumstances of the case and, therefore, the degree of fault in the trader’s failure to provide information and the nature of the work carried out, along with the amount of the sums claimed, the conduct of the parties can be assessed in accordance with the principles of contractual good faith. Such an assessment might lead to a solution different from the one proposed by the consumer, who is requesting that she be released from all costs despite having made full use of the service concerned by the contract.
48. It should first of all be noted that Directive 2011/83 does not contain any provisions on the issue of abuse by a consumer of the rights conferred by that directive. For that reason, I am of the view that Article 14(4)(a) and (5) of Directive 2011/83 must be interpreted in the light of the context and the objectives pursued by that directive, as well as the general principles of abuse of rights and good faith, with particular regard to the factual elements specific to the case at hand.
49. EU law recognises a general principle whereby individuals cannot fraudulently or abusively take advantage of EU rules. (31) The abuse of rights, as a general principle of European contract law, must be interpreted in the light of the principle of good faith. The principle of good faith indeed serves to regulate the exercise of rights: that is, the legitimate exercise of those rights should be consistent with the rationale of the rights themselves and not cause disproportionate prejudice to the other party. It follows, then, that the exercise of a right can never be unlimited, but must respect the purpose for which that right was introduced into the legal system.
50. In addition, it should be recalled again that Directive 2011/83 should not affect ‘national law in the area of contract law for contract law aspects that are not regulated by [that directive]’ and that ‘[the directive] should not affect national law in relation to the general contractual legal remedies’. (32)
51. According to settled case-law, proof of abusive practice requires the existence of two elements, one objective and one subjective. (33) As regards the objective element, it must be apparent that, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved. As regards the subjective element, on the other hand, it can be considered to exist where it is established that there is an intention to obtain an advantage deriving from the EU rules by creating artificially the conditions laid down for obtaining it.
52. In my analysis, I will focus in particular on the objective element, given that, as far as the subjective element is concerned, only the referring court will be able to ascertain, on the basis of the national rules on the burden of proof and all the findings at its disposal, whether the transaction was intended to obtain an undue advantage from the application of EU law. (34)
53. With regard to the objective element for proving the abusive practice, Directive 2011/83 aims to ensure a high level of consumer protection by conferring on consumers a number of rights, in particular in respect of distance or off-premises contracts, including the right of withdrawal. (35)
54. That directive lays down a number of obligations for the trader, in particular as regards the information to be provided to the consumer prior to the conclusion of the contract. Indeed, the objective of the EU legislature is to avoid a situation where the use of means of distance communication leads to a reduction in the information provided to the consumer. (36)
55. Given the fundamental importance of the information communicated to the consumer prior to the conclusion of the distance contract, the purpose of withdrawal – regulated in Article 14 of the directive as regards consumer obligations – is to enable the consumer to revoke his or her decision if, after the conclusion of the contract, he or she considers that the contract is no longer suited to his or her needs and to withdraw from the contract accordingly. (37)
56. If, however, the trader fails to provide information on the right of withdrawal, in accordance with Article 14(4)(a)(i) of Directive 2011/83, the consumer does not have to bear any costs. Furthermore, according to Article 14(5) of that directive, ‘the consumer shall not incur any liability as a consequence of the exercise of the right of withdrawal.’ In this context, in order to ensure a high level of consumer protection, the EU legislature, by means of Article 14(4) and (5) of the directive, intended to penalise traders who failed to comply with their information obligations. (38)
57. A further consideration must, however, be made with regard to the aims pursued by the directive.
58. As stated in recital 4 thereof, Directive 2011/83 is intended to strike the right balance between a high level of consumer protection and the competitiveness of enterprises. In that regard, in my view, what is stated in that recital of the directive is linked to recital 50 thereof, according to which, while, on the one hand, the consumer should benefit from his or her right of withdrawal even in case he or she has asked for the provision of services before the end of the withdrawal period, on the other hand the trader should be assured to be adequately paid for the service he, she or it has provided. (39)
59. On that basis, it would be contrary to that purpose to consider that a consumer could withdraw from a contract following full performance of the contract and be released from any obligation to pay. It would be a solution disproportionate to the economic needs of the company, with the consequence that the company could be burdened with unfair costs.
60. This is (further) confirmed if some elements that characterise the case at hand are taken into account: the contract did not contain any information relating to the right of withdrawal; the withdrawal occurred after the work was carried out; the contract was prepared by a trader (architect) who, according to the information on record, assisted the consumer throughout the negotiation phase.
61. Indeed, in this context, it is not possible to overlook the assistance provided by the architect, which, though not affecting the consumer status, may, in my view, still play a role in the overall assessment. It is unlikely that the architect was unaware of the consumer’s obligations and rights in relation to the contract which he had drawn up, or that he was unable to inform the consumer about them. (40) In any event, it is for the referring court to assess the influence exercised by the architect within the analysis of whether abuse of rights applies.
62. Based on these considerations, I do not agree with the Commission’s observations, according to which such a practice does not constitute an abuse only because the withdrawal took place within the 12-month period. In my view, it would be simplistic to conclude tout court that it is not an abusive practice on the basis of mere compliance with the terms of withdrawal.
63. As set out above, holding that the consumer may withdraw from the contract as referred to in Directive 2011/83 without incurring any cost would, in my view, lead to interpreting the objective of consumer protection beyond the limits of that very objective. On the other hand, account must be taken, when interpreting the provisions of EU law, of the consequences which may result from the exercise of the right of withdrawal.
64. In this context, in the light of the right balance, pursued by the directive, between consumer protection and the competitiveness of enterprises, I am inclined to believe that the exercise of the right of withdrawal should be limited so that the prerogatives of the trader can be safeguarded as well. Otherwise, the exercise of that right without compensation for the trader would run counter to the objective not only of the right of withdrawal but also of Directive 2011/83 as set out in recital 4 thereof. (41)
65. In particular, a balance must be struck between the strict application of the provisions protecting the consumer, and thus the protection of the consumer’s right to withdraw from the contract on account of the lack of information in the delicate pre-contractual phase, and the right of the trader to be compensated for the work done, having fully performed it for the consumer. That balance, following the national court’s review, could lie in the award of reasonable compensation. (42)
66. It is, however, for the referring court to carry out the appropriate reviews and, in particular: to assess whether or not the performance of the contract was complete, the value of the work and service provided, the influence that the architect’s intervention as a trader-consultant had on the consumer’s negotiating intention, the existence of abusive conduct on the part of the trader in the terms outlined above and, in the event that that court concludes that there was indeed abusive conduct, the appropriate amount of the remuneration due to the trader by the consumer considering the completion of the work and service.
V. Conclusion
67. In the light of all the foregoing considerations, I suggest that the Court answer the questions referred for a preliminary ruling by the Kammergericht (Higher Regional Court, Berlin, Germany) as follows:
Article 2(7) 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, subject to review by the referring court of the conditions relating to the definition of a distance contract, and having established that the person in question can be defined as a consumer, a distance contract has been concluded, entailing the application of the exercise of the right of withdrawal, even where the consumer in question has been assisted, before or at the time of the conclusion of the contract, by a third-party trader appointed by that consumer.
A distance contract has been concluded from which it is possible to withdraw under Article 9(1) of that directive also if one of the following conditions is satisfied: (i) the contract between the consumer and the service provider was established on the initiative of the trader providing assistance to the consumer; (ii) the trader providing assistance to the consumer has contributed to drawing up essential parts of the contract’s content before the conclusion of that contract.
Once it is established that the main contract constitutes a distance contract, the additional agreement also constitutes a distance contract, subject to review by the referring court as to whether that agreement also satisfies the necessary conditions to be defined as a distance contract and subject to the national rules on the validity and effects of an additional agreement.
Article 14(4)(a) and (5) of Directive 2011/83
must be interpreted as meaning that a consumer who has exercised his or her right of withdrawal after the performance of the contract is required to reimburse the trader the value of an already provided non-returnable service to a reasonable extent as determined by the national court where it is established, in the light of all the circumstances of the case, that there has been abusive conduct on the part of that consumer.