Judgment;Summary — ECLI:EU:C:2023:735
Date: 2023-10-05
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Translation C-565/22 – 1 
Case C-565/22 
Request for a preliminary ruling 
Date lodged: 
26 August 2022 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
20 July 2022 
Appellant on a point of law (applicant at first instance): 
Verein für Konsumenteninformation 
Respondent in the appeal on a point of law (defendant at first instance): 
Sofatutor GmbH 
  
The Oberster Gerichtshof (Supreme Court, Austria), sitting as the court ruling on 
appeals on points of law […], in the case of the action brought by the applicant, 
Verein für Konsumenteninformation (Association for Consumer Information), 
1060 Vienna, […] against the defendant, Sofatutor GmbH, Germany, 10245 
Berlin, […], for a prohibitory injunction and publication of the judgment, 
following the appeal on a point of law lodged by the applicant against the 
judgment of the Oberlandesgericht Wien (Higher Regional Court, Vienna), sitting 
as the court ruling on appeals on the merits (‘the appellate court’), of 18 March 
2022, GZ 5 R 141/2ly-30, by which the judgment of the Handelsgericht Wien 
(Commercial Court, Vienna) of 23 June 2021, GZ 30 Cg 29/20x-25, was varied, 
has made, […], the following 
O r d e r: 
I. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
Must Article 9(1) of Directive 2011/83/EU of the European Parliament and of the 
Council of 25 October 2011 on consumer rights be interpreted as meaning that the 
consumer has a new right of withdrawal where a distance contract is ‘extended 
automatically’ (Article 6(1)(o) of that directive)? 
EN 
REQUEST FOR A PRELIMINARY RULING OF 20. 7. 2022 – CASE C-565/22 
 
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II. […][stay of proceedings] 
G r o u n d s: 
A. Facts 
1 The applicant is an association with standing to bring proceedings in accordance 
with Paragraph 29 of the Konsumentenschutzgesetz (Law on consumer protection, 
Austria; ‘the KSchG’). 
2 The defendant operates online learning platforms for pupils. It also offers its 
services throughout the territory of Austria via the internet and, in the course of its 
business activities, regularly enters into contact with consumers, who have their 
place of residence or habitual residence in Austria, for the purpose of concluding 
legal transactions within the meaning of Paragraph 1 of the KSchG. The defendant 
concludes contracts with consumers on the basis of its general terms and 
conditions. 
3 The defendant’s general terms and conditions provide that, when a subscription is 
booked on the platform 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, that the subscription becomes chargeable only after 
the expiry of the 30 days and that, in the event of failure to terminate within the 
30 days, the paid subscription period agreed in the booking process begins to run. 
4 The general terms and conditions provide that, in the event that the paid 
subscription period expires without the defendant or the consumer having 
terminated the subscription in due time, the subscription is automatically extended 
for a certain period of time. 
5 When consumers conclude a contract for the first time, the defendant informs 
them of the right of withdrawal to which they are entitled by virtue of having 
concluded a contract at a distance, as in the present case. 
B. The arguments of the parties in the proceedings and the procedure to date 
6 The applicant seeks – in so far as still relevant to the proceedings relating to the 
appeal on a point of law – a finding that the defendant is guilty of ‘failing, in the 
course of trade with consumers, to inform the latter, in a clear and 
comprehensible manner, of the conditions, time limits and procedure for 
exercising the right of withdrawal, and also to provide the model withdrawal 
form, in the context of extending fixed-term distance contracts’. It takes the view 
that no restriction to the conclusion of a contract for the first time can be inferred 
from the wording of Article 9 of Directive 2011/83/EU (‘the Consumer Rights 
Directive’). Consequently, according to the applicant, the consumer also has a 
right of withdrawal under Paragraph 11 of the Fern- und Auswärtsgeschäfte-
Gesetz (Federal Law on distance and off-premises contracts, Austria; ‘the 
FAGG’), which transposes Article 9 of the Consumer Rights Directive, when his 
VEREIN FÜR KONSUMENTENINFORMATION 
 
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or her trial subscription is converted into a regular subscription and also when a 
regular subscription is renewed. The defendant does not inform consumers of that 
second right of withdrawal. The defendant thus breaches its obligation to provide 
information under point 8 of Paragraph 4(1) of the FAGG, thereby making it 
liable to a prohibitory injunction under Paragraph 28a(1) of the KSchG. 
7 The defendant opposed that application for a prohibitory injunction. It took the 
view that the automatic extension of contracts which is provided for in the 
legislation does not give rise to a second right of withdrawal on the part of the 
consumer, with the result that it is not required to inform consumers of such a 
right. 
8 The court of first instance found against the defendant – in so far as is relevant in 
the present proceedings – in accordance with the form of order sought by the 
action. 
9 The appellate court varied the judgment 
– in so far as is relevant in the present proceedings – in such a way as to dismiss 
the action. 
10 The applicant’s appeal on a point of law before the Supreme Court, for which 
the appellate court granted leave, is directed against that decision. 
C. Relevant provisions 
Article 2(7), Article 6(1)(h) and (o) and Article 9(1) of the Consumer Rights 
Directive, together with their headings, read as follows: 
Article 2 
Definitions 
For the purpose of this Directive, the following definitions shall apply: 
[…] 
(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; 
Article 6 
Information requirements for distance and off-premises contracts 
REQUEST FOR A PRELIMINARY RULING OF 20. 7. 2022 – CASE C-565/22 
 
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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); 
[…] 
(o) the duration of the contract, where applicable, or, if the contract is of 
indeterminate duration or is to be extended automatically, the conditions for 
terminating the contract; 
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. 
The provisions of Paragraph 3(2), Paragraph 4(1), points 8 and 14, and 
Paragraph 11(1) of the FAGG, together with their headings, read as follows: 
Definitions 
Paragraph 3 In this Federal Law, the term 
[…] 
2. ‘distance contract’ means any contract concluded between a trader and a 
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 means of distance communication up to and including the time at 
which the contract is concluded; 
Content of the obligation to provide information; Legal consequences 
Paragraph 4(1) Before the consumer is bound by a contract or his or her 
contractual declaration, the trader shall provide him or her with the following 
information in a clear and comprehensible manner: 
[…] 
VEREIN FÜR KONSUMENTENINFORMATION 
 
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8. where a right of withdrawal exists, the conditions, time limit and procedures 
for exercising that right, whereby the model withdrawal form pursuant to Part B 
of Annex I shall also be provided. 
[…] 
14. the duration of the contract, where applicable, or, if the contract is of 
indeterminate duration or is to be extended automatically, the conditions for 
terminating the contract, 
Right of withdrawal and time limit for withdrawal 
Paragraph 11(1) The consumer may withdraw from a distance or off-premises 
contract within a period of 14 days, without giving any reason. 
[…] 
D. Reasoning in the request for a preliminary ruling 
11 The outcome of the dispute depends essentially on the interpretation of 
Article 9(1) of the Consumer Rights Directive, which in turn must guide the 
interpretation of Paragraph 11(1) of the FAGG. 
12 According to the travaux préparatoires relating to Paragraph 11 of the FAGG, the 
right of withdrawal is not limited to the first time a contract is concluded between 
a trader and a consumer, but, rather, an extension of an existing but fixed-term 
contractual relationship or an amendment of the content of an existing contractual 
relationship, if agreed at a distance or off-premises, may also be subject to the 
FAGG and thus give rise to a right of withdrawal on the part of the consumer in 
respect of the agreed extension or amendment of the contract […]. 
13 According to a view expressed in the legal literature, with reference being made to 
the travaux préparatoires, a right of withdrawal also enters into consideration in 
the case of an amendment of the content of, or (separately agreed) extension of, a 
contractual relationship, however created, by way of an off-premises or distance 
contract […]. According to that view, if the consumer’s consent is deemed to be 
given by means of a fictitious declaration, the consumer must be specifically 
informed of the significance of his or her conduct […]. 
14 In the legal literature, doubts are expressed as to whether an automatic extension 
of a distance contract gives rise to a new right of withdrawal. It is stated that 
Article 6(1)(o) of the Consumer Rights Directive merely provides for an 
obligation to inform the consumer of ‘the duration of the contract, where 
applicable, or, if the contract is of indeterminate duration or is to be extended 
automatically, the conditions for terminating the contract’, but there is no mention 
of a right of withdrawal, or information regarding such a right, in the provision, 
even though it concerns the automatic extension of contracts. In addition, doubt is 
cast on the supposition that an automatic extension constitutes a (second) 
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‘distance contract’ within the meaning of Article 2(7) of the Consumer Rights 
Directive. That doubt is justified on the ground that no (second) contract is 
‘concluded’, but, rather, the first contract is merely not terminated (and, as 
provided for in that contract, its term is thereby extended), and on the ground that, 
where a contract is automatically extended, there can be no question of ‘exclusive 
use of means of distance communication’ within the meaning of the legal 
definition of ‘distance contract’. Lastly, it is argued that the typical risk which 
exists in the case of distance selling (and which objectively justifies the right of 
withdrawal) no longer exists in the case where a contract is automatically 
extended (see recital 37 of the Consumer Rights Directive). In that respect, the 
consumer is already sufficiently familiar with the goods or services and has 
already been adequately informed, when the contract was initially concluded, of 
the possibility of extension […]. 
15 The Court of Justice of the European Union has ruled that Article 2(a) of Directive 
2002/65/EC concerning the distance marketing of consumer financial services 
must be interpreted as meaning that an agreed amendment to a loan agreement 
cannot be categorised as a ‘contract concerning financial services’, within the 
meaning of that provision, where the amendment does no more than alter the 
originally agreed rate of interest, but does not extend the term of the loan or alter 
its amount, and where the original clauses of the loan agreement provided for the 
agreement of such an amendment or, failing such agreement, the application of a 
variable interest rate (CJEU, C-639/18, Sparkasse Südholstein). 
16 The Supreme Court takes the view 
that there is no acte clair with regard to the question set out above – even if the 
arguments presented in the legal literature militate against a right of withdrawal 
and the decision of the Court of Justice in Case C-639/18 can be usefully applied 
the present case […]. Therefore, the Supreme Court, as the court of last instance, 
considers that it is obliged to submit a request for a preliminary ruling (see 
RS0082949). 
[…] 20 July 2022 
[…]