Judgment;Summary — ECLI:EU:C:2020:382
Date: 2020-05-14
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

summary of costs, she 
sent the planning documents and the statement of costs to the defendants on 
2 February 2017. On the same day, she invoiced an amount of EUR 3 780.00 to 
the defendants for the planning services provided. By email of 12 February 2017, 
the defendants informed the applicant that the result of the plans differed from 
their ideas and specifications to such an extent that the achievement of an 
acceptable result was inconceivable. They declared that they were ending the 
‘working relationship’ with immediate effect and ‘withdrawing’ the ‘planning 
instruction’. 
II. Legal basis: 
1. The provisions of Directive 2011/83/ EU (‘the Consumer Rights Directive’) 
that are decisive in the view of the appellate court are worded as follows: 
Article 2 Definitions: 
For the purpose of this Directive, the following definitions shall apply: 
[...] 
3. ‘goods’ means any tangible movable items [...]; 
4. ‘goods made to the consumer’s specifications’ means non-prefabricated 
goods made on the basis of an individual choice of or decision by the consumer; 
[...] 
Article 3 Scope 
1. This Directive shall apply, under the conditions and to the extent set out in 
its provisions, to any contract concluded between a trader and a consumer. [...] 
[Or. 4] 
[...] 
3. This Directive shall not apply to contracts: 
[...] 
(f) for the construction of new buildings, the substantial conversion of existing 
buildings and for rental of accommodation for residential purposes; 
[...] 
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Article 6 Information requirements for distance and off-premises contracts 
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) […]; 
[...] 
Article 7 Formal requirements for off-premises contracts 
[...] 
3. Where a consumer wants the performance of services […] to begin during 
the withdrawal period provided for in Article 9(2), the trader shall require that the 
consumer makes such an express request on a durable medium. 
[...] 
Article 9 Right of withdrawal 
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. 
[...] 
Article 10 Omission of information on the right of withdrawal 
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). [Or. 5] 
[...] 
Article 14 Obligations of the consumer in the event of withdrawal 
[...] 
3. Where a consumer exercises the right of withdrawal after having made a 
request in accordance with Article 7(3) or Article 8(8), the consumer shall pay to 
the trader an amount which is in proportion to what has been provided until the 
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time the consumer has informed the trader of the exercise of the right of 
withdrawal, in comparison with the full coverage of the contract. [...] 
4. The consumer shall bear no cost for: 
(a) the performance of services, 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); [...] 
Article 16 Exceptions from the right of withdrawal 
Member States shall not provide for the right of withdrawal set out in Articles 9 to 
15 in respect of distance and off-premises contracts as regards the following: 
(a) service contracts after the service has been fully performed if the 
performance has begun with the consumer’s prior express consent, and with the 
acknowledgement that he will lose his right of withdrawal once the contract has 
been fully performed by the trader; 
[...] 
(c) the supply of goods made to the consumer’s specifications or clearly 
personalised; 
[...] 
2. The Consumer Rights Directive was transposed into Austrian law (inter alia) 
by means of the Bundesgesetz über Fernabsatz- und außerhalb von 
Geschäftsräumen geschlossene Verträge (Fern- und Auswärtsgeschäfte-Gesetz — 
FAGG) (Federal Law on distance and off-premises contracts (Distance and Off-
Premises Transactions Law — FAGG)), which contains, inter alia, the following 
provisions, which are essentially consistent with the corresponding provisions of 
the Consumer Rights Directive: [Or. 6] 
Paragraph 1. (1)  This Federal Law applies to distance and off-premises 
contracts (distance and off-premises transactions) between traders and consumers 
[…]. 
(2)  This Federal Law shall not apply — […] — to contracts: 
[...] 
7. for the construction of new buildings, the substantial conversion of existing 
buildings and for rental of accommodation for residential purposes, 
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[...] 
Paragraph 4. (1) Before the consumer is bound by a contract or his 
contractual declaration, the trader must provide him with the following 
information in a clear and comprehensible manner: 
[...] 
8. where a right of withdrawal exists, the conditions, time limits and procedure 
for exercising that right, […] 
[...] 
10. where appropriate, the consumer’s obligation, if he withdraws from the 
contract pursuant to Paragraph 16, to pay a proportionate amount for the services 
already provided, 
11. where appropriate, the non-existence of a right of withdrawal under 
Paragraph 18 or the circumstances under which the consumer loses his right of 
withdrawal, 
[...] 
Paragraph 10. If a distance or off-premises contract relates to a service […] and 
the consumer wants the trader to begin to perform the contract before expiry of the 
withdrawal period under Paragraph 11, the trader must require that the consumer 
make a request expressly directed at this early contractual performance — in the 
case of an off-premises contract on a durable medium. 
Paragraph 11. (1)  The consumer can withdraw from a distance or off-premises 
contract within 14 days without giving any reason. 
[...] 
Paragraph 12. (1)  If the trader has not complied with his information 
obligation under Paragraph 4(1)(8), the withdrawal period provided for in 
Paragraph 11 shall be extended by twelve months. 
[...] 
[Or. 7] 
Paragraph 16. (1)  Where the consumer withdraws from a contract relating to 
services [...] under Paragraph 11(1) after he has made a request pursuant to 
Paragraph 10 and the trader has thereupon begun to perform the contract, he shall 
pay to the trader an amount which is in proportion to the services provided by the 
trader up to the withdrawal, in comparison with the overall price contractually 
agreed. [...] 
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(2) The proportionate payment obligation under subparagraph (1) shall not exist 
in the case where the trader has not met his information obligation under 
Paragraph 4(1)(8) and (10). 
[...] 
Paragraph 18. (1)  The consumer shall have no right of withdrawal in the case 
of distance or off-premises contracts relating to 
1. services, if the trader — on the basis of an express request by the consumer 
under Paragraph 10 and confirmation by the consumer of his awareness of the loss 
of the right of withdrawal once the contract has been fully performed — had 
begun to perform the service before expiry of the withdrawal period under 
Paragraph 11 and the service was then provided in full. 
[...] 
3. goods made to the consumer’s specifications or clearly personalised, 
[…]. 
III. Forms of order sought and arguments of the parties: 
1. In the present case, the applicant is seeking that the defendants be ordered to 
pay the fee for the planning services which she provided. She argues that the 
FAGG is not applicable to the architectural contract concluded with the 
defendants, because she provided services in connection with the new 
construction of a building within the meaning of the exception provision of 
Paragraph 1(2)(7) FAGG. The defendants, she argues, also have no right to 
withdraw from that contract, because the applicant had to draw up plans which 
had been personalised for the defendants. The exception set out in 
Paragraph 18(1)(3) FAGG, which also relates to works contracts, is therefore 
realised. The applicant’s payment request is accordingly justified. 
2. The defendants request that the form of order sought be rejected and they 
reply — [Or. 8] in so far as is relevant to the present request for a preliminary 
ruling — that Article 3(3)(f) of the Consumer Rights Directive, which was 
transposed in Paragraph 1(2)(7) FAGG, relates to construction services, not to 
planning services. Architectural contracts are not mentioned in recital 26 of the 
Consumer Rights Directive. The FAGG is therefore applicable to the present 
contract. The applicant did not meet her information obligations under 
Paragraph 4(1)(8) and (10) FAGG. The withdrawal period of 14 days established 
in Paragraph 11(1) FAGG was therefore extended by twelve months pursuant to 
Paragraph 12(1) FAGG. The withdrawal from the contract declared by the 
defendants on 12 February 2017 is therefore effective. The applicant began to 
perform the contract before expiry of the withdrawal period, without requesting 
the defendants expressly to make their request for early contractual performance 
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(Paragraph 10 FAGG). The defendants’ proportionate payment obligation 
established for the case of withdrawal from the contract in Paragraph 16(1) FAGG 
does not, they submit, apply, because the applicant breached her information 
obligations. The defendants therefore did not owe any fee. 
IV. Previous proceedings: 
1. The court of first instance rejected the form of order sought in full. It took 
the view that the architectural contract concluded between the parties to the 
proceedings was not to be regarded as a contract in connection with the 
construction of a building within the meaning of Paragraph 1(2)(7) FAGG, which 
meant that the FAGG was applicable. The rough draft to be prepared by the 
applicant for the single-family house had been drawn up according to the 
defendants’ specific wishes. Pursuant to Paragraph 18(1)(3) FAGG, the 
defendants therefore had no right to withdraw from the contract. However, the 
defendants had not been informed of this by the applicant. Due to the failure to 
meet the information obligations under Paragraph 4(1)(8) and (10) FAGG, the 
defendants therefore did not owe a fee pursuant to Paragraph 16(1) FAGG. 
2. That judgment is the subject of the applicant’s appeal, by which she once 
again argues, inter alia, that the contract concluded with the defendants [Or. 9] 
comes under the exception set out in Paragraph 1(2)(7) FAGG. The FAGG, she 
argues, is therefore not applicable. However, even if it were to be applicable, the 
criteria for the factual situation of Paragraph 18(1)(3) FAGG are met, because the 
construction plans prepared by the applicant are ‘goods’ within the meaning of 
Article 2(3) and (4) of the Consumer Rights Directive. The defendants therefore 
had no right to withdraw from the contract. 
V. Questions referred: 
1. For the legal assessment to be made by the appellate court, it is, inter alia, 
decisive whether the criteria for the exception of Paragraph 1(2)(7) FAGG are met 
and the matter comes within the scope of application of the FAGG. In the event 
that the FAGG is applicable, it is furthermore also material to the decision 
whether the conditions for the exception under Paragraph 18(1)(3) FAGG are met, 
in order to be able to assess whether or not the defendants had a right to withdraw 
from the contract. As the FAGG serves to transpose the Consumer Rights 
Directive, it is therefore to be interpreted in line with that directive. 
2. Question 1: 
2.1. In order to resolve the question of whether the FAGG applies to the facts of 
the present case, it is necessary to examine whether the architectural contract 
concluded between the parties to the proceedings is a contract for the 
‘construction of new buildings’ within the meaning of Paragraph 1(2)(7) FAGG. 
Should this be answered in the affirmative, the criteria for the exception 
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established in that statutory provision would be met and the FAGG would 
therefore not be applicable. The cited exception provision corresponds to 
Article 3(3)(f) of the Consumer Rights Directive. 
2.2. In question is how the term ‘contract for the construction of new buildings’ 
is to be interpreted and whether a contract for the planning to be carried out by an 
architect for the construction of a new building is also to be subsumed thereunder. 
This is supported by the fact that planning together with the preparation of 
construction plans is always also required for the construction of a new building, 
which means that a contract for the provision of the planning services required for 
the construction project [Or. 10] could be regarded as being part of the services to 
be provided in connection with the construction of a new building. On the other 
hand, this reading might be contradicted by the fact that the main performance 
obligation of an architectural contract that relates only to the preparation of plans 
(as in the case to be assessed here) does not lie in the construction of the building 
in the narrower sense. Nothing can be derived from recital 26 of the Consumer 
Rights Directive for resolving this question. The Court of Justice is therefore 
requested to provide clarification. 
3. Question 2: 
3.1. Should the contract concluded between the parties to the proceedings not be 
subsumed under the exception provided for in Article 3(3)(f) of the Consumer 
Rights Directive (Paragraph 1(2)(7) FAGG) and the FAGG is therefore to be 
applied to the present case, it would then be necessary to resolve the question of 
whether the defendants legitimately withdrew from the contract and whether they 
have to pay a fee for the services already provided by the applicant. In this 
context, a decisive question is whether a right of withdrawal is excluded under 
Paragraph 18 FAGG on the ground that the contract concluded between the parties 
to the proceedings is a contract for ‘goods made to the consumer’s specifications 
or clearly personalised’ within the meaning of Paragraph 18(1)(3) of the FAGG. 
The Austrian FAGG does not define the term ‘goods’ in more detail. 
3.2. The exception provision of Paragraph 18(1)(3) FAGG corresponds to 
Article 16(c) of the Consumer Rights Directive. This provision is therefore also to 
be interpreted in line with the Consumer Rights Directive. According to recital 49, 
tailor-made curtains or the supply of fuel which by nature is inseparably mixed 
with other items after delivery are, for example, covered by the cited exception. 
Pursuant to Article 2(3) of the Consumer Rights Directive, ‘tangible movable 
items’ come under the term ‘goods’. It could be argued here that a [Or. 11] plan is 
a tangible item and therefore to be subsumed under Article 2(3) of the Consumer 
Rights Directive. The subsumption under Article 16(c) of the Consumer Rights 
Directive would also be supported by the fact that the applicant had to carry out 
the planning in accordance with the defendants’ wishes and specifications and to 
draw up corresponding plans. Against this, it could be argued that the 
(intellectual) service or work of planning is to the fore in the architectural contract 
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and that there is therefore no supply of goods within the meaning of Article 2(3), 
in conjunction with Article 16(c), of the Consumer Rights Directive. 
3.3. In the view of the appellate court, this question also requires clarification by 
the Court of Justice. 
VI. Procedural law matter: 
[...] 
Landesgericht für Zivilrechtssachen Graz, Sixth Chamber 
Graz, 5 February 2019 
[...]