Opinion of the Advocate General — ECLI:EU:C:2026:115
Date: 2026-02-26
Language of the case: German

Translation  C-234/25 – 1 
Case C-234/25 
Request for a preliminary ruling 
Date lodged: 
27 March 2025 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
19 March 2025 
Applicant and respondent in the appeal on a point of law: 
Verein für Konsumenteninformation 
Defendant and appellant in the appeal on a point of law: 
Sky Österreich Fernsehen GmbH 
  
The Oberster Gerichtshof (Supreme Court), as the court ruling on the appeal on a 
point of law (Revision) […], in the case brought by the applicant, Verein für 
Konsumenteninformation, […] Vienna, […] against the defendant, Sky Österreich 
Fernsehen GmbH, […] Vienna, […] concerning a prohibitory injunction (value at 
issue: EUR 30 500) and the publication of the judgment (value at issue: 
EUR 5 500), following the appeal on a point of law lodged by the defendant 
against the judgment of the Oberlandesgericht Wien (Higher Regional Court, 
Vienna), as the court hearing the appeal (Berufung), of 23 February 2024, file ref. 
4 R 185/23i-25, which upheld the appeal of the applicant against the judgment of 
the Handelsgericht Wien (Commercial Court, Vienna) of 3 October 2023, file ref. 
11 Cg 10/23t-20, makes 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: 
1. Must Article 16(m) 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 
EN 
REQUEST FOR A PRELIMINARY RULING OF 19. 3. 2025 – CASE C-234/25 
 
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97/7/EC of the European Parliament and of the Council, read in conjunction with 
Article 2(11) thereof, be interpreted as meaning that the offering of streaming 
services, where the digital content made available for viewing is located on a 
server which may be accessed by customers from their terminal via a link or an 
app, who then can watch the programmes included in their subscription both ‘live’ 
and ‘on demand’ via the internet or, alternatively, can download the digital 
content and store it in the memory of their own device and, independently of 
online access, view it once within 48 hours, constitutes a supply of ‘digital 
content’ within the meaning of those provisions? 
2. […] [Stay of proceedings] 
B a c k g r o u n d: 
1. Subject matter of the proceedings and facts of the case: 
[1] The applicant is a consumer rights organisation that has standing to bring 
proceedings under Paragraph 29 of the Konsumentenschutzgesetz (Law on 
consumer protection). 
[2] The defendant provides a streaming service. In the context of streaming, 
digital content made available for viewing is located on a server to which 
customers are granted access from their terminal via a link or an app. They can 
then watch the programmes included in their subscription both ‘live’ and ‘on 
demand’ via the internet. Downloads are also possible, depending on the 
respective licensor. In that respect, digital content can be stored in the memory of 
the customer’s own device and played independently of online access. Downloads 
can only be watched once and the customer must finish watching within 48 hours 
from the time he or she starts watching. 
[3] Two subscription packages for streaming are available from the defendant, 
namely ‘Sport & Live TV’ and ‘Fiction & Live TV’. A subscription can only be 
taken out online if the customer consents, by clicking, to the following contractual 
clause: 
‘When ordering a subscription: I have read and understood Sky X’s withdrawal 
policy. I agree that Sky will begin performing the contract before the 14-day 
withdrawal period expires and that I therefore lose my right of withdrawal when 
ordering a subscription.’ 
2. Arguments of the parties and forms of order sought: 
[4] 2.1. The applicant is seeking an order requiring the defendant to refrain 
from using and relying on the cited clause in commercial dealings with 
consumers, and authorising the applicant to publish the judgment. It argues that 
the withdrawal policy misinforms consumers. It claims that a streaming 
subscription constitutes a ‘digital service’, where the right of withdrawal is 
extinguished only once the service has been performed in full. 
SKY ÖSTERREICH FERNSEHEN 
 
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[5] 2.2. The defendant disputes that and argues that its withdrawal policy 
complies with the law. It maintains that the streaming service constitutes ‘digital 
content’, and therefore the right of withdrawal is extinguished already when 
performance of the contract begins. 
3. Proceedings to date: 
[6] 3.1. The court of first instance dismissed the action. It categorised streaming 
services as ‘digital content’, which is why, in its view, the withdrawal policy (if 
the other conditions are met) complies with the law. 
[7] 3.2. The court of second instance, however, upheld the applicant’s appeal 
and varied the first-instance judgment so as to find in the applicant’s favour. It 
categorised the streaming service offered by the defendant as a ‘digital service’, 
where the right of withdrawal does not cease already when performance of the 
contract begins, but only once the service has been fully performed (if the other 
conditions are met). According to the second-instance court, the clause is 
therefore unlawful. 
[8] 3.3. The defendant has challenged that judgment before the Supreme Court. 
4. Basis in European Union law: 
[9] 4.1. Article 2(11) of Directive 2011/83 of the European Parliament and of 
the Council of 25 October 2011 on consumer rights defines ‘digital content’ as 
data which are produced and supplied in digital form; 
[10] Article 16 of that directive, ‘Exceptions from the right of withdrawal’, reads 
in extract: 
‘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; 
(…) (m) the supply of digital content which is not supplied on a tangible medium if 
the performance has begun with the consumer’s prior express consent and his 
acknowledgment that he thereby loses his right of withdrawal.’ 
[11] Directive (EU) 2019/2161 of the European Parliament and of the Council of 
27 November 2019 amending Council Directive 93/13/EEC and Directives 
98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the 
Council as regards better enforcement and modernisation of Union consumer 
protection rules aligned the definition of the term ‘digital content’ in Directive 
2011/83/EU with that in Directive (EU) 2019/770 of the European Parliament and 
REQUEST FOR A PRELIMINARY RULING OF 19. 3. 2025 – CASE C-234/25 
 
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of the Council of 20 May 2019 on certain aspects concerning contracts for the 
supply of digital content and digital services. 
[12] Directive (EU) 2019/770 lays down, inter alia, the following definitions in 
Article 2: 
‘For the purposes of this Directive, the following definitions apply: 
1. “digital content” means data which are produced and supplied in digital 
form; 
2. ”digital service” means: 
(a) a service that allows the consumer to create, process, store or access data in 
digital form; or 
(b) a service that allows the sharing of or any other interaction with data in 
digital form uploaded or created by the consumer or other users of that service.’ 
5. National law: 
[13] The Bundesgesetz über Fernabsatz- und außerhalb von Geschäftsräumen 
geschlossene Verträge (Federal Law on distance and off-premises contracts; ‘the 
FAGG’), in the version promulgated in Bundesgesetzblatt (Federal Law Gazette, 
BGBl.) I No 109/2022, contains the following definitions in Paragraph 3(4) to (6): 
‘4. “digital supplies” means digital content or digital services; 
5. “digital content” means data produced and supplied in digital form, 
including data developed in accordance with consumer instructions; 
6. “digital service” means: 
(a) a service that allows the consumer to create, process, store or access data in 
digital form; or 
(b) a service that allows the sharing of or any other interaction with data in 
digital form uploaded or created by the consumer or other users of that service, 
including services developed in accordance with consumer instructions.’ 
[14] Paragraph 18 FAGG governs ‘Exceptions from the right of withdrawal’. 
Under Paragraph 18(1) FAGG, the consumer has no right of withdrawal in respect 
of, inter alia, distance or off-premises contracts relating to: 
‘1. services where the trader has fully performed the service, it being 
understood that, in cases where the consumer is required to make a payment 
under the contract, the right of withdrawal ceases only if, in addition, the trader 
SKY ÖSTERREICH FERNSEHEN 
 
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has begun to perform the contract with the consumer’s prior express consent and 
if the consumer 
(a) has either confirmed, before the provision of services begins, that he or she 
understands that he or she will lose his or her right of withdrawal once the 
contract is fully performed; 
(b) or has expressly requested the trader to carry out a visit in order to have 
repair work carried out; 
(…) 
11. the supply of digital content not intended to be supplied on a tangible 
medium if the trader has begun performance of the contract, it being understood 
that, in cases where the consumer is required to make a payment under the 
contract, the right of withdrawal ceases only if, in addition, 
(a) the consumer has provided prior express consent to begin performance of 
the contract before the expiry of the withdrawal period; 
(b) the consumer has confirmed that he or she understands that he or she will 
lose his or her right of withdrawal as a result of performance of the contract 
beginning early; and 
(c) the trader has provided the consumer with a copy or confirmation in 
accordance with Paragraph 5(2) or Paragraph 7(3).’ 
6. Background to the question referred: 
[15] 6.1. Directive 2011/83/EU aims for (diluted) full harmonisation of consumer 
law. Pursuant to Article 4 thereof, Member States may not – unless otherwise 
provided for in that directive – maintain or introduce, in their national law, 
provisions diverging from those laid down in that directive, including more 
stringent provisions to ensure a different level of consumer protection. 
[16] 6.2. When interpreting national laws, the courts must be guided as closely as 
possible by the wording and the purpose of the directive and construe any legal 
terms that are the same in the directive and in national law in accordance with the 
terms under EU law. 
[17] 6.3. The need for uniform application of EU law requires that the terms of a 
provision in EU law which makes no express reference to the law of the Member 
States for the purpose of determining its meaning and scope should normally be 
given an autonomous and uniform interpretation throughout the European Union; 
that interpretation must take into account the context of the provision and the 
purpose of the legislation in question. 
REQUEST FOR A PRELIMINARY RULING OF 19. 3. 2025 – CASE C-234/25 
 
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[18] 6.4. In order to assess whether, in the case of contracts for streaming 
services involving supplies comparable to those of the defendant, the consumer’s 
right of withdrawal – if the other conditions are met – ceases already when 
performance of the contract begins or only once the contract is fully performed, it 
has to be ascertained whether those contracts are to be categorised as contracts 
relating to digital content or digital services. The criteria for distinguishing 
between the two are therefore crucial. 
[19] 6.5. While the previously cited directives provide examples of digital 
content and digital services in their recitals by way of illustration, they themselves 
proceed from the assumption that it can be difficult to distinguish between 
different types of digital content or digital services. Where there is doubt, it must 
therefore be assumed that digital services are concerned. 
[20] Recital 19 of Directive 2011/83/EU cites as examples of digital content 
computer programmes, applications, games, music, videos or texts, irrespective of 
whether they are accessed through downloading or streaming, from a tangible 
medium or through any other means. However, that directive does not lay down 
any specific distinction between digital content and digital services. 
[21] Recital 19 of Directive (EU) 2019/770 reads in extract: ‘In order to cater for 
fast technological developments and to maintain the future-proof nature of the 
notion of digital content or digital service, this Directive should cover, inter alia, 
computer programmes, applications, video files, audio files, music files, digital 
games, e-books or other e-publications, and also digital services which allow the 
creation of, processing of, accessing or storage of data in digital form, including 
software-as-a-service, such as video and audio sharing and other file hosting, 
word processing or games offered in the cloud computing environment and social 
media. As there are numerous ways for digital content or digital services to be 
supplied, such as transmission on a tangible medium, downloading by consumers 
on their devices, web-streaming, allowing access to storage capabilities of digital 
content or access to the use of social media, this Directive should apply 
independently of the medium used for the transmission of, or for giving access to, 
the digital content or digital service.’ 
[22] Recital 30 of Directive 2019/2161 reads in extract: ‘Digital content […] 
covers a single act of supply, a series of individual acts of supply, or continuous 
supply over a period of time. The element of continuous supply should not 
necessarily require a long-term supply. Cases such as web-streaming of video 
clips should be considered continuous supply over a period of time, regardless of 
the actual duration of the audiovisual file. It may therefore be difficult to 
distinguish between certain types of digital content and digital services, since both 
can involve continuous supply by the trader over the duration of the contract. 
Examples of digital services are video and audio sharing services and other file 
hosting, word processing or games offered in the cloud, cloud storage, webmail, 
social media and cloud applications. The continuous involvement of the service 
provider justifies the application of the rules on the right of withdrawal provided 
SKY ÖSTERREICH FERNSEHEN 
 
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for in Directive 2011/83/EU that effectively allow the consumer to test the service 
and decide, during the 14-day period from the conclusion of the contract, whether 
to keep it or not. Many contracts for the supply of digital content which is not 
supplied on a tangible medium are characterised by a single act of supply to the 
consumer of a specific piece or pieces of digital content, such as specific music or 
video files. Contracts for the supply of digital content which is not supplied on a 
tangible medium remain subject to the exception from the right of withdrawal set 
out in point (m) of the first paragraph of Article 16 of Directive 2011/83/EU, 
which provides that the consumer loses the right of withdrawal when the 
performance of the contract is started, such as download or streaming of the 
content, subject to the consumer’s prior express consent to begin the performance 
during the right of withdrawal period and acknowledgement that he has thereby 
lost his right of withdrawal. Where there is doubt as to whether the contract is a 
service contract or a contract for the supply of digital content which is not 
supplied on a tangible medium, the rules on right of withdrawal for services 
should apply.’ 
[23] 6.6. The service provided by the defendant meets the criterion of ‘creation 
and supply of data in digital form’ and thus fulfils the definition of digital content. 
[24] However, that could also be regarded as ‘storage of and access to data in 
digital form’. The defendant’s supplies are also not provided once. Instead, the 
customer concludes a subscription contract which allows him or her to access the 
defendant’s offering on an ongoing basis for the duration of the subscription, and 
the defendant provides the corresponding structures for that purpose. That is 
regularly accompanied by the offering being updated, together with individual 
recommendations based on the behaviour of the respective user. That might 
militate in favour of the existence of a digital service, which is also supported by 
the fact that the contract is generally intended to be long term. For that reason, the 
purpose of the right of withdrawal, which is intended to enable the consumer to 
examine the ordered service and decide within 14 days whether or not he or she 
wishes to keep using it, continues to exist even after use has begun. However, the 
defendant argues that that would also entail a risk of abuse: For example, in the 
context of major sporting events, users could use the right of withdrawal to obtain 
a one-off service at an inadequate price. The fact that there is no possibility of 
interaction between users and that customers do not upload or create their own 
files should also be taken into account. 
[25] 6.7. The view that ‘streaming’ as such is to be regarded as a digital service is 
contradicted by the fact that ‘streaming’ ultimately only refers to the data 
transmission process where the data can already be viewed or listened to during 
transmission. Therefore, nothing can be gained from that alone for the 
categorisation as digital content or services. As follows from recital 19 of 
Directive (EU) 2019/770 as cited, the directive should apply independently of the 
specific data transmission method. 
REQUEST FOR A PRELIMINARY RULING OF 19. 3. 2025 – CASE C-234/25 
 
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[26] The fact that recital 30 of Directive 2019/2161 does not consider continuous 
supply to be decisive for categorisation as a digital service or as digital content 
supports an interpretation to the effect that differentiation is not dependent on the 
duration/frequency of service provision – one-off supply (digital content), 
continuing obligation (digital service). 
[27] No other potential differentiation criteria – such as e.g.: can data also be 
supplied alternatively on a tangible medium; is content delivered by the provider 
alone or does the provider primarily provide the infrastructure for user-made 
content; does the consumer him or herself obtain the content on a permanent basis 
or do the data have to be retrieved from the company’s server time and again for 
each use – can be inferred with the necessary clarity from the wording of the 
directive. 
[28] 6.8. There is no case-law of the Court of Justice of the European Union 
examining the distinction between digital content and services yet, and therefore 
clarification by the Court as to whether streaming services such as those provided 
by the defendant are to be regarded as digital content or digital services is 
necessary. 
[29] 7. […] 
[30] 8. […][Procedural details] 
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Vienna, 19 March 2025 
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