Judgment;Summary — ECLI:EU:C:2023:413
Date: 2023-05-17
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation C-97/22 – 1 
Case C-97/22 
Request for a preliminary ruling 
Date lodged: 
10 February 2022 
Referring court: 
Landgericht Essen (Germany) 
Date of the decision to refer: 
27 December 2021 
Applicant: 
DC 
Defendant: 
HJ 
  
Landgericht Essen (Regional Court, Essen, Germany) 
Order 
In the case of 
DC v HJ 
I. 
The following question on the interpretation of EU law is referred to the Court of 
Justice of the European Union for a preliminary ruling pursuant to point (a) of the 
first paragraph and the second paragraph of Article 267 TFEU: 
Must Article 14(5) 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 
EN 
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Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of 
the European Parliament and of the Council (‘Directive 2011/83/EU’) be 
interpreted as meaning that, in the event that the customer withdraws his or her 
declaration of intention to conclude an off-premises construction contract only 
after the trader has already (fully) performed his or her services, it also precludes 
any entitlement to compensation or compensation for value on the part of the 
trader where the conditions of entitlement to compensation or compensation for 
value under the rules governing the legal consequences of withdrawal are not met, 
but the customer’s assets have been enhanced as a result of the trader’s 
construction work, that is to say, he or she has been enriched? 
II. 
[…] [statements regarding the stay of proceedings] 
Grounds: 
A. 
The facts and relevant law 
I. 
The case referred rests on the following facts: 
The applicant, acting under assigned rights, seeks from the defendant the 
provision of a construction work security pursuant to Paragraph 650f(1) of the 
Bürgerliches Gesetzbuch (Civil Code; ‘the BGB’), or, in the alternative, (partial) 
remuneration for the work performed by the assignor. 
On 6 October 2020, the defendant orally concluded, in accordance with 
Paragraph 650a of the BGB, a construction contract with the assignor for the 
replacement of the electrical installations in his house, which was being 
renovated. The assignor did not inform the defendant in accordance with the 
requirements of points 1 and 3 of the first sentence of Paragraph 1(2) of 
Article 246a of the Einführungsgesetz zum Bürgerlichen Gesetzbuch 
(Introductory Law to the Civil Code; ‘the EGBGB’). After completing his 
services, the assignor issued a final invoice to the defendant on 21 December 
2020, which the defendant did not pay. On 15 March 2021, the assignor assigned 
all claims under the works contract to the applicant. By letter from his lawyer of 
17 March 2021, the defendant declared to the assignor that he was withdrawing 
his declaration of intention to conclude the construction contract. 
II. 
The provisions of German law relevant to the resolution of the dispute read as 
follows, in the version applicable in the cases referred: 
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1. 
Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’) 
Paragraph 312b Off-premises contracts 
(1) Off-premises contracts are contracts 
1. concluded in the simultaneous physical presence of the consumer and the 
trader, in a place which is not the business premises of the trader, 
2. for which an offer was made by the consumer under the circumstances 
referred to in point 1; 
3. concluded on the business premises of the trader or through any means of 
distance communication by which the consumer was, immediately 
beforehand, personally and individually addressed in a place outside of the 
business premises of the trader in the simultaneous physical presence of the 
consumer and the trader; or 
4. […]. 
Persons acting in the name of the trader or on his or her behalf are to be treated 
in the same way as the trader. 
(2) Business premises within the meaning of paragraph 1 are any immovable 
retail premises where the trader carries out his or her activity on a permanent 
basis, and any movable retail premises where the trader carries out his or her 
activity on a usual basis. Retail premises where the person who is acting in the 
name or on behalf of the trader carries out his or her activity on a permanent 
basis or on a usual basis are equivalent to the premises of the trader. 
Paragraph 312g Right of withdrawal 
(1) In the case of off-premises contracts and of distance contracts, the consumer 
has a right of withdrawal pursuant to Paragraph 355. 
(2) Unless otherwise agreed by the parties, the right of withdrawal does not 
apply to the following contracts: 
1. […] 
11. contracts where the consumer has specifically requested a visit from 
the trader for the purpose of carrying out urgent repairs or 
maintenance; this does not apply to other services provided on the 
occasion of such visit which were not specifically requested by the 
consumer or to goods supplied on the occasion of the visit other than 
replacement parts necessarily used in carrying out the maintenance or 
in making the repairs; 
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12. […] 
Paragraph 355 Right of withdrawal in consumer contracts 
(1) If a consumer is given, by statute, a right of withdrawal according to this 
provision, then the consumer and the trader are no longer bound by their 
declarations of intention to conclude the contract if the consumer withdraws his 
declaration of intention within the period specified. The withdrawal is effected by 
a declaration being made to the trader. That declaration must unambiguously 
reflect the consumer’s decision to withdraw from the contract. The withdrawal 
does not have to provide any grounds. Dispatch of the withdrawal in good time is 
sufficient to comply with the time limit. 
(2) The withdrawal period is 14 days. Unless otherwise provided, that period 
shall begin at the time of conclusion of the contract. 
(3) In the event of withdrawal, the performance received shall be returned 
without delay. If the law specifies a time limit for the return, that period begins, 
for the trader, upon receipt of the declaration of withdrawal and, for the 
consumer, upon dispatch of that declaration. Dispatch of the goods in good time 
is sufficient for the consumer’s compliance with that time limit. In the case of 
withdrawal, the trader bears the risk of returning the goods. 
Paragraph 356 Right of withdrawal in off-premises contracts and distance 
contracts 
(1) […]. 
(2) That period of withdrawal shall begin 
1. […], 
2. upon conclusion of the contract in the case of contracts for the supply 
of water, gas or electricity, where they are not put up for sale in a 
limited volume or set quantity, the supply of district heating or the 
supply of digital content which is not supplied on a tangible medium. 
(3) The withdrawal period does not commence prior to the trader having 
informed the consumer in accordance with the requirements of point 1 of the first 
sentence of Paragraph 1(2) of Article 246a or of Article 246b(2)(1) of the 
Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the Civil 
Code). The right of withdrawal expires at the latest 12 months and 14 days 
following the point in time set out in subparagraph (2) or Paragraph 355(2), 
second sentence. The second sentence does not apply to contracts relating to 
financial services. 
(4) In the case of contracts for the performance of services, the right of 
withdrawal expires even if the trader has fully performed the service and started 
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to perform the service only after the consumer had given his or her express 
consent thereto and at the same time acknowledged that he or she will lose his or 
her right of withdrawal once the contract has been fully performed by the trader. 
In the case of off-premises contracts, the consumer’s consent must be transmitted 
on a durable medium. […]. 
(5) […] 
Paragraph 357 Legal consequences of withdrawal from off-premises contracts 
and distance contracts, with the exception of contracts for financial services 
(1) The performance received shall be returned at the latest after 14 days. 
(2) The trader must also return any payments made by the consumer for the 
supply. This does not apply where the consumer has incurred supplementary costs 
because he or she has opted for a type of delivery other than the least expensive 
type of standard delivery offered by the trader. 
(3) The trader must use the same means of payment for the reimbursement as 
the consumer used for the payment. The first sentence does not apply if the parties 
have expressly agreed otherwise and the consumer does not incur any fees as a 
result. 
(4) In the case of a sale of consumer goods, the trader may withhold the 
reimbursement until he or she has received the goods back, or until the consumer 
has supplied evidence of having dispatched the goods. This does not apply if the 
trader has offered to collect the goods. 
(5) The consumer is not obliged to return the goods received if the trader has 
offered to collect them. 
(6) The consumer shall bear the direct costs of returning the goods if the trader 
has informed the consumer of that obligation in accordance with point 2 of the 
first sentence of Paragraph 1(2) of Article 246a of the Introductory Law to the 
Civil Code. The first sentence does not apply if the trader has agreed to bear those 
costs. In the case of off-premises contracts where the goods have been delivered to 
the consumer’s home at the time of the conclusion of the contract, the trader is 
required to collect the goods at his or her own expense if, by their nature, those 
goods cannot be returned by post. 
(7) The consumer shall pay compensation for any diminished value of the goods 
where 
1. the diminished value results from the handling of the goods other than 
what was necessary to establish the nature, characteristics and 
functioning of the goods, and 
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2. the trader has informed the consumer of his or her right of withdrawal 
in accordance with point 1 of the first sentence of Paragraph 1(2) of 
Article 246a of the Introductory Law to the Civil Code. 
(8) Where the consumer withdraws from a contract for the provision of services 
or the supply of water, gas or electricity, where they are not put up for sale in a 
limited volume or set quantity, or for the supply of distance heating, the consumer 
shall owe the trader compensation for the performance provided until the time of 
the withdrawal in those cases in which the consumer has expressly required that 
the trader begin the performance prior to expiry of the withdrawal period. The 
right under the first sentence exists only in those cases in which the trader has 
informed the consumer of the right of withdrawal pursuant to points 1 and 3 of the 
first sentence of Paragraph 1(2) of Article 246a of the Introductory Law to the 
Civil Code). For off-premises contracts, the right under the first sentence exists 
only in those cases in which the consumer has transmitted his or her request 
under the first sentence on a durable medium. In calculating the compensation 
payment, the total price agreed upon is to be used as a basis. If the total price 
agreed upon is excessive, the compensation payment shall be calculated on the 
basis of the market value of the performance provided. 
(9) Where the consumer withdraws from a contract for the supply of digital 
content that is not contained in a tangible medium, he or she shall not pay 
compensation for the services received. 
Paragraph 357d Legal consequences of withdrawal in the case of consumer 
construction contracts 
If the return of the performance rendered up to the time of withdrawal is 
precluded by its nature, the consumer shall owe the trader compensation for 
value. In calculating the compensation for value, the remuneration agreed upon is 
to be used as a basis. If the remuneration agreed upon is excessive, the 
compensation for value shall be calculated on the basis of the market value of 
what has been provided. 
Paragraph 361 Further claims, different agreements and burden of proof 
(1) Beyond the provisions of this subtitle, there are no further claims against the 
consumer as a result of withdrawal. 
(2) The provisions of this subtitle may not be derogated from to the detriment of 
the consumer unless otherwise provided. Unless otherwise provided, the 
provisions of this subtitle shall apply even where they are circumvented by other 
arrangements. 
(3) In the event of a dispute regarding the beginning of the withdrawal period, 
the trader shall bear the burden of proof. 
2. 
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Einführungsgesetz zum Bürgerlichen Gesetzbuche (Introductory Law to the Civil 
Code) 
Paragraph 1 of Article 246a Information requirements 
(1) The trader shall, pursuant to Paragraph 312d(1) of the Civil Code, provide 
the consumer with the following information: 
1. the main characteristics of the goods or services, to the extent appropriate 
to the medium and to the goods and services; 
2. his or her identity, such as his or her trading name, the geographical 
address at which he or she is established and his or her telephone number 
and, where available, his or her fax number and email address and, where 
applicable, the geographical address and identity of the trader on whose 
behalf he or she is acting; 
3. in addition to the information under point 2, the geographical address of the 
place of business of the trader, and, where applicable, that of the trader on 
whose behalf he or she is acting, where the consumer can address any 
complaints, if different from the address provided in accordance with 
point 2; 
4. the total price of the goods or services inclusive of taxes, or where the 
nature of the goods or services is such that the price cannot reasonably be 
calculated in advance, the manner in which the price is to be calculated, as 
well as, where applicable, all additional freight, delivery or postal charges 
and any other costs or, where those charges cannot reasonably be 
calculated in advance, the fact that such additional charges may be payable. 
5. […], 
6. […], 
7. the arrangements for payment, delivery, performance, the time by which the 
trader must deliver the goods or perform the services and, where applicable, 
the trader’s complaint handling policy; 
8. the existence of a legal guarantee of conformity for goods; 
9. where applicable, […] 
[…] 
(2) If the consumer is entitled to a right of withdrawal pursuant to 
Paragraph 312g(1) of the BGB, the trader is obliged to inform the consumer 
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1. of the conditions, time limits and procedure for exercising the right of 
withdrawal pursuant to Paragraph 355(1) of the BGB, as well as the model 
withdrawal form set out in Annex 2, 
2. where applicable, that the consumer will have to bear the cost of returning 
the goods in case of withdrawal and also, for distance contracts, if the 
goods, by their nature, cannot normally be returned by post, the cost of 
returning the goods; and 
3. that, in the case of a contract for the provision of services or the supply of 
water, gas or electricity, where that supply is not agreed in a limited volume 
or set quantity, or for the supply of distance heating, the consumer shall owe 
the trader reasonable costs in accordance with Paragraph 357(8) of the 
Civil Code for what has been provided by the trader if the consumer 
exercises the right of withdrawal after expressly requiring, at the request of 
the trader, that the latter begin the performance prior to expiry of the 
withdrawal period. 
The trader may satisfy those information requirements by submitting the model 
withdrawal instruction set out in Annex 1, correctly filled in and in the form of a 
text. 
(3) The trader shall also be required to inform the consumer 
1. that the consumer may not revoke his or her declaration of intent where he 
or she does not have the right of withdrawal under points 1, 2, 5 and 7 to 13 
of Paragraph 312g(2) of the BGB; or 
2. the circumstances in which the consumer loses an initially existing right of 
withdrawal where his or her right of withdrawal may expire prematurely in 
accordance with Paragraph 312g(2), points 3, 4 and 6, and 
Paragraph 356(4) and (5) of the Civil Code. 
III. 
The above provisions transposed the following provisions 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 97/7/EC of the European Parliament and of 
the Council: 
Article 13 
Obligations of the trader in the event of withdrawal 
1. The trader shall reimburse all payments received from the consumer, 
including, if applicable, the costs of delivery without undue delay and in any event 
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not later than 14 days from the day on which he is informed of the consumer’s 
decision to withdraw from the contract in accordance with Article 11. 
The trader shall carry out the reimbursement referred to in the first subparagraph 
using the same means of payment as the consumer used for the initial transaction, 
unless the consumer has expressly agreed otherwise and provided that the 
consumer does not incur any fees as a result of such reimbursement. 
2. Notwithstanding paragraph 1, the trader shall not be required to reimburse 
the supplementary costs, if the consumer has expressly opted for a type of delivery 
other than the least expensive type of standard delivery offered by the trader. 
3. Unless the trader has offered to collect the goods himself, with regard to 
sales contracts, the trader may withhold the reimbursement until he has received 
the goods back, or until the consumer has supplied evidence of having sent back 
the goods, whichever is the earliest. 
Article 14 
Obligations of the consumer in the event of withdrawal 
1. Unless the trader has offered to collect the goods himself, the consumer 
shall send back the goods or hand them over to the trader or to a person 
authorised by the trader to receive the goods, without undue delay and in any 
event not later than 14 days from the day on which he has communicated his 
decision to withdraw from the contract to the trader in accordance with 
Article 11. The deadline shall be met if the consumer sends back the goods before 
the period of 14 days has expired. 
The consumer shall only bear the direct cost of returning the goods unless the 
trader has agreed to bear them or the trader failed to inform the consumer that 
the consumer has to bear them. 
In the case of off-premises contracts where the goods have been delivered to the 
consumer’s home at the time of the conclusion of the contract, the trader shall at 
his own expense collect the goods if, by their nature, those goods cannot normally 
be returned by post. 
2. The consumer shall only be liable for any diminished value of the goods 
resulting from the handling of the goods other than what is necessary to establish 
the nature, characteristics and functioning of the goods. The consumer shall in 
any event not be liable for diminished value of the goods where the trader has 
failed to provide notice of the right of withdrawal in accordance with point (h) of 
Article 6(1). 
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. The 
proportionate amount to be paid by the consumer to the trader shall be calculated 
on the basis of the total price agreed in the contract. If the total price is excessive, 
the proportionate amount shall be calculated on the basis of the market value of 
what has been provided. 
4. The consumer shall bear no cost for: 
(a) the performance of services or the supply of water, gas or electricity, 
where they are not put up for sale in a limited volume or set quantity, 
or of district heating, 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); or 
(b) the supply, in full or in part, of digital content which is not supplied on 
a tangible medium where: 
(i) the consumer has not given his prior express consent to the 
beginning of the performance before the end of the 14-day period 
referred to in Article 9; 
(ii) the consumer has not acknowledged that he loses his right of 
withdrawal when giving his consent; or 
(iii) the trader has failed to provide confirmation in accordance with 
Article 7(2) or Article 8(7). 
5. Except as provided for in Article 13(2) and in this Article, the consumer 
shall not incur any liability as a consequence of the exercise of the right of 
withdrawal. 
B. 
In the context of the claim made in the alternative, the parties are in dispute as to 
whether, following the defendant’s withdrawal, the applicant is entitled to 
compensation for the construction services rendered, even though the conditions 
for entitlement to compensation for value under Paragraph 357(8) of the BGB are 
not met. 
I. 
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The applicant takes the view that it necessarily follows from recital 57 of 
Directive 2011/83/EU that the trader must be entitled to compensation for value in 
the event of withdrawal. This is because, according to the applicant, the exclusion 
of entitlement to compensation for value as a penalty for the trader’s failure to 
provide the required information in a protracted and convoluted process to 
conclude the contract constitutes a disproportionate penalty for an infringement of 
Directive 2011/83/EU. 
II. 
By contrast, the defendant takes the view that, in accordance with the case-law of 
the Bundesgerichtshof (Federal Court of Justice), the applicant is not entitled to 
compensation for value, either on the merits or in terms of amount. 
C. 
In the case referred, the success or failure of the action with regard to the claim 
made in the alternative depends on the answer to the question on the interpretation 
of Article 14(5) of Directive 2011/83/EU, set out in point I of the operative part of 
this order. 
I. 
The intraprocedural condition for a ruling on the claim made in the alternative will 
be met, as the main claim directed at the provision of a construction work security 
pursuant to Paragraph 650f(1) of the BGB will have no prospect of success, 
because the defendant effectively withdrew his declaration of intention to 
conclude the construction contract. The withdrawal gave rise to a repayment 
obligation pursuant to Paragraph 355 of the BGB. Any claims arising therefrom 
are not eligible for security pursuant to Paragraph 650f(1) of the BGB. 
II. 
Entitlement to compensation for value pursuant to the second sentence of 
Paragraph 357(8) of the BGB does not exist in the present case – irrespective of 
the conditions laid down in the first sentence – because the assignor did not 
inform the defendant of the right of withdrawal and the obligation to pay 
compensation for value in accordance with points 1 and 3 of Paragraph 1(2) of 
Article 246a of the Introductory Law to the Civil Code (‘the EGBGB’). 
Paragraph 361(1) of the BGB provides that, beyond the provisions of this subtitle, 
there are no further claims against the consumer as a result of withdrawal. 
Therefore, the success of the action by way of the alternative claim for payment of 
part of the remuneration for the work on the merits depends on whether 
Article 14(5) of Directive 2011/83/EU is to be interpreted as meaning that the 
legal consequence of a withdrawal in the event that the customer withdraws his or 
her declaration of intention to conclude an off-premises construction contract only 
after the trader has already (fully) performed his or her services is that any 
entitlement to compensation or compensation for value on the part of the trader is 
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also excluded where the conditions of entitlement to compensation for value under 
the rules governing the legal consequences of withdrawal are not met, but the 
customer’s assets have been enhanced as a result of the trader’s construction 
work, that is to say, he or she has been enriched. 
The question referred, set out in point I of the operative part of this order, is 
therefore relevant to the decision to be given. 
D. 
To date, no clear answer to the question referred has been provided in the case-
law or legal literature. 
I. 
The Federal Court of Justice takes the view (judgment of 30 August 2018 – VII 
ZR 243/17 – NJW 2018, 3380, 3381, paragraph 35) that the subcontractor is not 
entitled to compensation for value for any performance provided up to the time of 
withdrawal in accordance with the first sentence of Paragraph 357(8) of the BGB 
if he or she did not inform the customer of the conditions, time limits and 
procedure for exercising the right of withdrawal, as well as the model withdrawal 
form (second sentence of Paragraph 357(8) of the BGB and point 1 of the first 
sentence of Paragraph 1(2) of Article 246a of the EGBGB). 
II. 
According also to the prevailing opinion in the German legal literature, the 
entitlement to compensation which is provided for in Paragraph 357(8) of the 
BGB, read in conjunction with Paragraph 361(1) thereof, and which was 
introduced to implement Article 14(5) of Directive 2011/83/EU, is an 
exhaustively regulated regime which excludes further claims based on the 
withdrawal from the contract, for example those based on unjust enrichment 
pursuant to Paragraph 812 of the BGB […] [references in the legal literature]. 
E. 
However, the present Chamber has considerable doubts as to whether, in so far as 
the specific conditions of entitlement to compensation for value following 
withdrawal are not met, Article 14(5) of Directive 2011/83/EU excludes any 
entitlement to compensation or compensation for value where the trader has 
already (fully) performed his or her services. 
I. 
The Chamber considers that the views set out in section D reveal a considerable 
discrepancy between, on the one hand, the legal consequences of the withdrawal 
of a declaration of intention to conclude a construction contract – as occurred in 
the present case – where entitlement to compensation for value is excluded 
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pursuant to the second sentence of Paragraph 357(8) of the BGB and, on the other 
hand, the legal consequences of a withdrawal of a declaration of intention to 
conclude a consumer construction contract pursuant to Paragraph 650i of the 
BGB, since, in the latter case, the consumer owes the contractor compensation for 
value pursuant to the first sentence of Paragraph 357d of the BGB where the 
return of the performance provided up to the time of the withdrawal is precluded 
by its nature, without provision being made for an exclusion of such entitlement, 
in line with the second sentence of Paragraph 357(8) of the BGB. The Chamber 
takes the view that this unequal treatment of the legal consequences of the 
withdrawal of a declaration of intention to conclude an off-premises construction 
contract and the withdrawal of a declaration of intention to conclude a consumer 
construction contract cannot be objectively justified, at least in the case where – as 
in the present case – the customer’s assets have been enhanced by the construction 
services, that is to say, he or she has been enriched. Rather, in the present case, the 
assumption that claims under the law on unjust enrichment are (also) excluded by 
Paragraph 361(1) of the BGB would in fact run counter to the balancing function 
of the system of the law on unjust enrichment, with its restitution and its 
disgorgement function, that system being oriented towards material aspects of 
justice and equity […] [reference in the legal literature]. 
II. 
The Chamber takes the view that the interpretation given to Paragraph 361(1) of 
the BGB – which transposed Article 14(5) of Directive 2011/83/EU into national 
law – by the case-law and prevailing legal literature outlined in section D is not 
binding in the sense of a comprehensive exclusion of claims. The exclusion of 
claims against the consumer ‘as a consequence of the exercise of the right of 
withdrawal’ formulated in Article 14(5) of Directive 2011/83/EU does not 
necessarily have to encompass claims made under the law on unjust enrichment 
after a withdrawal, as such an interpretation might contradict the principle of 
prohibition of enrichment – under EU law also. That principle is intended to 
ensure that the consumer surrenders to the trader the advantages to which he or 
she is not entitled from the material point of view of justice or – if that is not 
possible – to ensure that the consumer does not definitively retain those 
advantages without paying compensation […] [reference in the legal literature]. 
At the same time, the application of the principles of the law on unjust enrichment 
would also ensure that the consumer need only pay compensation for the 
performance that also has value for him or her or is line with his or her interests, 
as the principles of ‘imposed’ enrichment […] [reference in the legal literature] 
would also remain applicable. 
In that respect, the Chamber takes the view that the interpretation of Article 14(5) 
of Directive 2011/83/EU might have to take into account that the prohibition of 
unjust enrichment is a principle common to the legal systems of the Member 
States which has been at least implicitly recognised by the Court as one of the 
general principles of EU law (see CJEU, judgment of 16 December 2008 – 
C-47/07 P (Masdar (UK) v Commission) […] [reference in the legal literature]. 
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According to this principle, a person who has suffered a loss which enhances the 
assets of another person without there being any valid legal basis for that 
enrichment is entitled to restitution, up to the amount of that loss, from the person 
enriched (see CJEU (Grand Chamber), judgment of 9 July 2020 – C-575/18 P 
(Czech Republic v Commission) […] [reference in the legal literature]; Opinion of 
Advocate General Hogan of 15 July 2021 – C-33/20, C-155/20, C-187/20, 
point 134 [OMISSIS] […] [reference in the legal literature]. Member States must 
take account of that principle of prohibition of enrichment when specifying the 
consequences of the exercise of the right of withdrawal (see the Opinion of 
Advocate General Hogan, loc. cit., point 135).  
The recitals of Directive 2011/83/EU do not necessarily preclude an 
understanding of Article 14(5) of Directive 2011/83/EU to the effect that it also 
respects the principle of prohibition of enrichment, that is to say, it does not 
exclude possible compensation claims brought by the trader under the law on 
unjust enrichment. Recital 47 of Directive 2011/83/EU states that, in the event that 
a consumer has used the goods to an extent more than necessary to establish the 
nature, characteristics and the functioning of the goods, the consumer should not 
lose the right to withdraw but should be liable for any diminished value of the 
goods (transposed into national law by Paragraph 357(7) of the BGB). It is stated 
at the end of that recital that the obligations of the consumer in the event of 
withdrawal should not discourage the consumer from exercising his or her right of 
withdrawal. Therefore, the recital might express the consideration under the law 
on unjust enrichment that a pecuniary advantage unjustifiably accrued to the 
consumer should not remain with the consumer, but should be reimbursed to the 
trader at whose expense the advantage was obtained. If the restitution and 
disgorgement functions of the law on unjust enrichment were to be understood as 
general principles of substantive justice, and if the principle of prohibition of 
enrichment under EU law is taken into account, the obligations imposed on the 
consumer by the law on unjust enrichment might also not be such as to prevent 
him or her from exercising his or her right of withdrawal. Furthermore, recital 50 
of Directive 2011/83/EU provides that, on the one hand, the consumer should 
benefit from his or her right of withdrawal even where he or she has asked for the 
provision of services before the end of the withdrawal period, and, on the other 
hand, if the consumer exercises his or her right of withdrawal, the trader should be 
assured to be adequately paid for the service he or she has provided (transposed 
into national law by Paragraph 357(8) of the BGB). That recital might also 
express the intention for the principle of prohibition of enrichment under EU law 
to be taken into account. Therefore, it may be doubted whether, by excluding 
claims against the consumer ‘as a consequence of the exercise of the right of 
withdrawal’, the EU legislature intended, for the event that the trader does not 
properly inform the consumer of the right of withdrawal and of a possible 
obligation to pay compensation for value, a penalty of such severity that even the 
principle of prohibition of enrichment under EU law should take second place to 
this. 
III. 
DC 
 
15 
Anonymised version 
If Article 14(5) of Directive 2011/83/EU is understood to leave room for the 
application of the EU-law principle of prohibition of enrichment, the Chamber 
takes the view that Paragraph 361(1) of the BGB, due to its wording ‘claims 
against the consumer as a result of withdrawal’, might also be interpreted in 
conformity with the directive as meaning that claims under the law of unjust 
enrichment are not completely excluded by that provision. In that case, the 
applicant’s claim in the alternative could be successful on the basis of entitlement 
to compensation under the law on unjust enrichment. 
F. 
The decision on how the provision of Article 14(5) of Directive 2011/83/EU is to 
be interpreted in the context set out in sections A to E above is ultimately a matter 
for the Court of Justice. Since the question referred, set out in point I of the 
operative part of this order, has not yet been answered by the case-law of the 
Court of Justice, it is in the interest of a uniform interpretation of EU law for the 
court to refer it, of its own motion, to the Court of Justice for a preliminary ruling 
pursuant to point (a) of the first paragraph and the second paragraph of Article 267 
TFEU. 
Essen, 27 December 2021 
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