ECJ: No Cancellation Info, No Money

Jun 16, 2023 Benn-Ibler Rechtsanwälte

Even after a service has been fully provided and an invoice has been issued, the customer does not have to pay: According to the European Court of Justice (hereinafter ECJ), if a company forgets to inform their consumer about the consumer’s right of withdrawal in an off-premise contract, the entrepreneur bears the risk of withdrawal. Consumers can therefore still withdraw even after a service has been completed.

In the case at hand, an electrical installation company submitted their invoice to the customer upon completion of the work. Instead of paying, the customer cancelled the contract. The company had failed to inform the consumer about consumers’ 14-day right of withdrawal when concluding an off-premise contract. The time limit does not start to run until the company has fulfilled its obligation to inform the consumer.

The company sued for remuneration. The exclusion of the claim for remuneration due to violation of the information obligation from the Consumer Protection Directive 2011/83 would constitute a disproportionate sanction.

The German regional court ruled in favour of the consumer, but posed the question whether the consumer should not have to pay some compensation because the increase in assets thus achieved by the consumer could run counter to the principle of the prohibition of unjust enrichment.

The court turned to the ECJ. The latter stated that the Directive must be interpreted as exempting a consumer from any obligation to pay for performance if the trader in question fails to inform the consumer of the right of withdrawal and the consumer exercises their right of withdrawal after the contract has been performed.

According to the spirit and purpose of the Directive, the consumer must not incur any costs, including compensation for lost value. Here, the entrepreneur must bear the responsibility.

ECJ, C-97/22 (17.05.2023)