Opinion of the Advocate General — ECLI:EU:C:2023:864
Date: 2023-11-14
Language of the case: German
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-400/22 – 1 
Case C-400/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
16 June 2022 
Referring court: 
Landgericht Berlin (Germany) 
Date of the decision to refer: 
2 June 2022 
Defendants and appellants: 
VT 
UR 
Applicant and respondent: 
Conny GmbH 
 
Subject matter of the main proceedings 
Consumer protection, distance contract to be concluded by electronic means, 
trader’s information requirements 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
Is it compatible with the second subparagraph of Article 8(2) of Directive 
2011/83/EU if a national provision (in the present case, Paragraph 312j(3), second 
sentence, and (4) of the BGB in the version in force from 13 June 2014 to 27 May 
2022) is to be interpreted as meaning that its scope, like that of the second 
subparagraph of Article 8(2) of Directive 2011/83/EU, also covers a case in which 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-400/22 
 
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the consumer is not unconditionally obliged to pay the trader at the time of the 
conclusion of the contract by electronic means, but only under certain further 
conditions – for example, exclusively in the event that a legal action which the 
trader has been instructed to bring is subsequently successful, or in the event that 
formal notice is subsequently given to a third party? 
Provisions of European Union law relied on 
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 (OJ 2011 L 304, p. 64), in particular the second 
subparagraph of Article 8(2) 
Provisions of national law relied on 
Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’), in particular 
Paragraph 312j 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is a limited liability company authorised to provide debt recovery 
services under German law. Acting under assigned rights, it asserts claims of the 
tenant of a dwelling of the defendant landlord on the basis of an alleged 
infringement of the provisions on the limitation of rent levels (Paragraph 556d of 
the BGB). 
2 Since 15 November 2018, the defendant and the abovementioned tenant have been 
parties to a tenancy agreement for a dwelling with a surface area of 64.18 m², 
which is located in an area with a tight housing market, as provided for in the 
Berliner Mietenbegrenzungsverordnung (Berlin Regulation on the limitation of 
rent levels) of 28 April 2015. The contractually agreed basic net rent is 
EUR 756.45 per month, whereas the average rent for comparable dwellings in the 
relevant area of Berlin between 15 November 2018 and the point at which the 
matter was brought before the applicant was only EUR 375.84. 
3 The applicant, via an internet site operated by it, offers residential tenants the 
possibility to instruct it to enforce claims against their landlord by clicking a 
button labelled ‘weiter’ (continue), ‘Mietsenkung beauftragen’ (instruct us to seek 
a rent reduction), or ‘Mietendeckelersparnis retten’ (recover rent ceiling saving), 
in particular to assert claims for information, for repayment of overpaid rent and 
for a declaration that the agreement on the amount of rent is invalid in so far as it 
exceeds the maximum permissible rent level. 
CONNY 
 
3 
4 Point 2 of the applicant’s general terms and conditions, on which the instruction 
by the tenant was based, provides, inter alia: 
‘2.1 You instruct us, after having gone through the steps of the rent 
calculator on our website … 
By clicking on the button “Auftrag verbindlich erteilen” (place binding 
order), or, at the latest, by sending to us (for example by email or by post) 
any documents which may have been provided by us (declaration of 
assignment or power of attorney), you make a binding offer to conclude an 
agency agreement, against payment, for the enforcement of claims, together 
with any ancillary claims, and for the assignment of claims. We accept your 
offer by way of an express declaration (for example by email) or by sending 
a letter of complaint to the landlord, by which we assert the claims against 
him or her. Upon request, you can sign a separate deed or confirmation of 
assignment or power of attorney and send us the original. …’ 
5 Moreover, point 3 of the general terms and conditions reads as follows: 
‘3.1 We shall receive (i) remuneration in the amount of one third (33.33%) 
of the amount of annual rent saved, that is to say, the savings across 
4 months (hereinafter referred to as “commission”), and, as soon as we send 
formal notice to the landlord, (ii) remuneration in the amount to which a 
lawyer would be entitled under the provisions of the 
Rechtsanwaltsvergütungsgesetz (Law on the remuneration of lawyers) … 
… 
3.3 In the event that we are unsuccessful in our efforts, the commission 
shall not apply. …’ 
6 The tenant of the dwelling in question registered on the website operated by the 
applicant, ticked a box agreeing to the applicant’s general terms and conditions, 
and clicked on the ‘order button’ provided. Subsequently, on 16 January 2020, the 
tenant signed a form entitled ‘Confirmation, grant of power of attorney, 
assignment and approval’, which had been provided by the applicant, and which 
states, inter alia: 
‘We hereby confirm and reiterate, purely by way of precaution, the 
assignment … of the claims …, the claim for repayment of overpaid rent[,] 
limited to the four months’ rent due after the complaint. Purely by way of 
precaution, we hereby approve, with retroactive effect, all legal acts 
undertaken and all declarations made in that respect …’ 
7 That form does not contain any reference to an obligation to pay on the part of the 
tenant. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-400/22 
 
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8 By letter of 21 January 2020, the applicant, relying on the fact that the tenant had 
instructed and authorised it, claimed that the defendants had infringed the 
provisions on the limitation of rent levels (Paragraph 556d et seq. of the BGB), 
and asserted various claims seeking information and repayment. 
9 By its action, the applicant seeks to obtain information on the rent payable by the 
previous tenant, on rent increases agreed with the previous tenant, on the carrying 
out of refurbishment work prior to the commencement of the tenancy and on the 
question whether the tenancy established with the tenant is the first letting 
following extensive refurbishment. It also seeks repayment of EUR 305.75 in 
overpaid rent for the month of April 2020 and reimbursement of EUR 813.39 in 
pre-litigation legal costs. 
10 The action was successful before the Amtsgericht (Local Court, Germany). The 
Local Court found, in particular, that the rent demanded exceeds the maximum 
permissible rent level to the extent claimed by the applicant. 
11 By their appeal brought before the referring court, the defendants seek the 
dismissal of the action in its entirety. They argue, inter alia, that the applicant 
infringed the requirements of the second sentence of Paragraph 312j(3) of the 
BGB and Article 8 of Directive 2011/83 due to the use of an insufficiently 
labelled order button. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The referring court takes the view that the success of the appeal hinges on whether 
the configuration of the order button used by the applicant infringes the second 
sentence of Paragraph 312j(3) of the BGB. This must be determined on the basis 
of the interpretation of the relevant provision of EU law, namely the second 
subparagraph of Article 8(2) of Directive 2011/83. The complaints directed at 
other aspects of the dispute, raised by the defendants in their appeal, have no 
prospect of success. 
Assessment of the dispute in accordance with the BGB 
13 The relevant subparagraphs of Paragraph 312j of the BGB, in the version 
applicable in the present case, read as follows: 
‘(2) In the case of an e-commerce consumer contract for a service provided by 
the trader for consideration, the trader shall provide the consumer with the items 
of information under points 1, 4, 5, 11 and 12 of the first sentence of 
Article 246a(1) of the Einführungsgesetz zum Bürgerlichen Gesetzbuche 
(Introductory Law to the Civil Code) in a clear, comprehensible and prominent 
manner directly before the consumer places his or her order. 
(3) In the case of a contract as provided for in subparagraph 2, the trader shall 
configure the ordering situation in such a way that the consumer, when placing his 
CONNY 
 
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or her order, explicitly acknowledges that he or she assumes an obligation to pay. 
Where the order is placed by means of a button, the obligation of the trader 
referred to in the first sentence shall be fulfilled only if the button is labelled in an 
easily legible manner only with the words “order with obligation to pay” or a 
corresponding unambiguous formulation. 
(4) Contracts as provided for in subparagraph 2 shall be formed only if the 
trader fulfils his or her obligation under subparagraph 3.’ 
14 Those provisions are in principle applicable to the applicant’s business model. In 
that respect, the referring court shares the view taken by the Bundesgerichtshof 
(Federal Court of Justice, Germany), which initially considered that business 
models that are ‘manifestly not associated with a hidden cost trap’ are not covered 
by Paragraph 312j(3) and (4) of the BGB, but which then promptly rejected that 
consideration (judgment of 19 January 2022, file reference VIII ZR 122/21). That 
view is in line with the case-law of the Court of Justice, in accordance with which 
all traders, and not only those who use ‘subscription or cost traps’, fall within the 
scope of the second subparagraph of Article 8(2) of Directive 2011/83 (see, most 
recently, judgment of 7 April 2022, Fuhrmann-2, C-249/21, EU:C:2022:269, 
paragraph 20 et seq.). 
15 If the second sentence of Paragraph 312j(3) of the BGB is applicable in this 
specific case, it is clear that the applicant did not fulfil the requirements of that 
provision. This is because it is apparent from the case file that the tenant 
instructed the applicant by pressing a button labelled ‘Mietsenkung beauftragen’ 
(instruct us to seek a rent reduction) or ‘Mietendeckelersparnis retten’ (recover 
rent ceiling saving). It is common ground that the button was not labelled with the 
words ‘order with obligation to pay’ or a corresponding unambiguous 
formulation. However, only in that way would the applicant have fulfilled the 
requirements of the second sentence of Paragraph 312j(3) of the BGB and the 
second subparagraph of Article 8(2) of Directive 2011/83, which is to be taken as 
the basis for the interpretation of the former provision in conformity with EU law 
(see judgment of 7 April 2022, Fuhrmann-2, C-249/21, EU:C:2022:269, 
paragraph 26). 
16 In accordance with the case-law of the Federal Court of Justice based on 
Paragraph 312j(4) of the BGB, the conclusion of the contract is entirely 
ineffective in such a case. By contrast, some authors in the legal literature take the 
view that, in accordance with the third sentence of the second subparagraph of 
Article 8(2) of Directive 2011/83, that provision of the BGB must be interpreted 
as meaning that the consumer is merely ‘not bound’ by the contract and the order, 
with the result that it must be assumed that the contract is provisionally 
ineffective. 
17 Even if the latter view were to be followed, the contract would not have been 
effectively concluded in the present case, since the applicant did not at any time 
inform the tenant of the dwelling in question of the payment obligations under the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-400/22 
 
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contract in a manner that complied with the requirements of the second sentence 
of Paragraph 312j(3) of the BGB. Furthermore, the tenant did not at any time 
approve or confirm, even impliedly, the contract which might have been only 
provisionally ineffective. 
18 Nor does the declaration of assignment of 16 January 2020 constitute such 
approval or confirmation, since the tenant made that declaration exclusively at the 
behest of the applicant in order thereby to comply with their alleged duty to 
cooperate, laid down by Point 2.1(2) of the applicant’s general terms and 
conditions in breach of the second sentence of Paragraph 312j(3) of the BGB. The 
assignment declared in that manner is structured together with the instruction by 
the tenant as a single transaction. It is therefore also ineffective. A different 
assessment cannot enter into consideration, since it would amount to legitimising 
‘confirmation traps’ by virtue of the fact that subsequent acts of performance by 
the consumer would be regarded as an implied approval, confirmation or even 
carrying out afresh of the transaction previously initiated by electronic means in a 
manner contrary to the second subparagraph of Article 8(2) of Directive 2011/83. 
However, this would mean that the consumer’s obligation to pay would not arise 
for him or her expressly, but merely from the ‘circumstances’ of the conclusion of 
the contract (see judgment of 7 April 2022, Fuhrmann-2, C-249/21, 
EU:C:2022:269, paragraph 30). 
Doubts in relation to EU law 
19 According to the first sentence of the second subparagraph of Article 8(2) of 
Directive 2011/83, the trader is to ensure that the consumer, when placing his or 
her order, explicitly acknowledges that the order implies an obligation to pay. The 
referring court takes the view that it is unclear whether that provision applies to 
the present case. Specifically, the question arises as to whether a distance contract 
to be concluded by electronic means also ‘implies’ an ‘obligation to pay’, within 
the meaning of that provision, where consideration is owed only under certain 
further conditions – such as exclusively in the event of a successful outcome or in 
the uncertain event that formal notice is subsequently given to a third party. 
20 In the context at issue, the Federal Court of Justice interprets the second 
subparagraph of Article 8(2) of Directive 2011/83 – and Paragraph 312j(3) and (4) 
of the BGB – as meaning that the ‘protective purpose is, on an exceptional basis, 
not affected’ and that the trader is therefore not obliged vis-à-vis the consumer to 
label the order button with the words ‘order with obligation to pay’ if 
‘consideration is owed only under certain conditions, namely exclusively in the 
event of a successful outcome’ (see judgments of 19 January 2022, VIII ZR 
123/21, paragraph 55, and of 30 March 2022, VIII ZR 358/20, paragraph 58). 
21 By contrast, other German courts, as well as the legal literature, attribute a 
considerably broader scope to the second subparagraph of Article 8(2) of 
Directive 2011/83. They take the view that that provision also covers transactions 
in respect of which the requirement to provide consideration follows only 
CONNY 
 
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indirectly from the conclusion of the contract or is linked to the existence of 
further conditions or actions by the consumer. 
22 The referring court is inclined to the latter view. That view is supported by the 
very wording of the provision in question, according to which the obligation to 
use such a button exists where the order ‘implies’ an obligation to pay on the part 
of the consumer. However, the conclusion of a contract initiated by electronic 
means ‘implies’ an obligation to pay if the arising of that obligation is not 
inevitable, but merely possible and not entirely excluded. 
23 Such an interpretation is also supported by the purpose of the second 
subparagraph of Article 8(2) of Directive 2011/83 since, as evidenced by Article 1 
and recitals 4, 5 and 7 of that directive, the latter seeks to provide a high level of 
consumer protection by ensuring that consumers are informed and secure in 
transactions with traders. That view is also in line with the settled case-law of the 
Court of Justice (see, most recently, judgment of 7 April 2022, Fuhrmann-2, 
C-249/21, EU:C:2022:269, paragraphs 21 and 30). However, it would not be 
compatible with the guarantee of that high level of consumer protection if the 
protection afforded by Directive 2011/83 were to benefit only those consumers 
whose subsequent obligation to pay is already established at the time of the 
conclusion of the contract, but were at the same time to be denied to those 
consumers in respect of whom the obligation to pay does not yet definitively exist 
at the time of the conclusion of the contract, but instead depends on the 
subsequent fulfilment of further conditions, over which consumers often do not 
even have any influence. This is because, in the event that such conditions are 
fulfilled, those consumers are obliged to pay even if they had not been expressly 
informed in advance of their obligation to pay. 
24 Lastly, considerations of practicability also do not preclude a broad interpretation 
of the second subparagraph of Article 8(2) of Directive 2011/83. In so far as the 
Federal Court of Justice stated that a broad interpretation could ‘cause confusion 
[for the consumer] … contrary to … the objective of the law and the directive 
transposed by it … because the service … is not intended to be subject to a charge 
in every case, but the formulation with which the button is labelled does not 
express this’ (see judgment of 19 January 2022, VIII ZR 123/21, paragraph 55), 
this does not justify a different assessment. On the one hand, reasons of mere 
practicability are not, as a matter of general principle, capable of influencing the 
interpretation of EU law in a manner contrary to its wording or its spirit and 
purpose. On the other hand, it is in any event possible for the trader to inform the 
consumer with sufficient clarity, outside the button, that an obligation to pay 
exists not without exception, but only in the regular case presented by the trader 
on his or her website. This eliminates any ambiguity that would be capable of 
causing ‘confusion’ on the part of the consumer as a result of the button being 
labelled with overly broad wording. In fact, ‘confusion’ would be likely to arise 
only among consumers who, in the event that a relevant condition is fulfilled, find 
themselves exposed to a trader’s payment claims, the arising of which was not 
known to them, or in any event not sufficiently known to them, at the time of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-400/22 
 
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instruction due to the fact that the order button was not labelled in a manner 
complying with the requirements of the second subparagraph of Article 8(2) of 
Directive 2011/83.