Opinion of the Advocate General — ECLI:EU:C:2025:713
Date: 2025-09-18
Language of the case: German

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Translation C-564/24 – 1 
Case C-564/24 
Request for a preliminary ruling 
Date lodged: 
20 August 2024 
Referring court: 
Kammergericht (Germany) 
Date of the decision to refer: 
9 April 2024 
Applicant, defendant in the counterclaim and appellant: 
Eisenberger Gerüstbau GmbH 
Defendant, applicant in the counterclaim and respondent: 
JK 
  
Copy 
Kammergericht (Higher Regional Court, Berlin, Germany)  
Case reference:  21 U 61/23  
[…] 
Order 
In the case of 
Eisenberger Gerüstbau GmbH, […] Eisenberg […]  
– applicant, defendant in the counterclaim and appellant – 
[…] 
v 
EN 
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[…] JK, […] Munich (Germany)  
– defendant, applicant in the counterclaim and respondent – 
[…] 
the Higher Regional Court, Berlin – 21st Civil Chamber – […] made the 
following order on 9 April 2024: 
I. The following questions on the interpretation of Directive 2011/83/E[U], 
which concern a contract concluded between a consumer and a trader (‘the 
service provider’ or ‘the consumer’s counterparty’) with the exclusive use of 
means of distance communication, are referred to the Court of Justice of the 
European Union: 
1. Is a contract a distance contract within the meaning of Article 2(7) of 
Directive 2011/83/E[U] for which a right of withdrawal exists under 
Article 9(1) of that directive if, before or at the time of conclusion of 
the contract, the consumer is assisted by a trader whom he or she has 
commissioned independently of the service provider? 
2. If the Court answers Question 1 in the affirmative: 
Is a contract likewise a distance contract within the meaning of 
Article 2(7) of Directive 2011/83/E[U] for which a right of withdrawal 
exists under Article 9(1) of that directive where one of the following 
additional conditions is fulfilled? 
(a) It was the trader assisting the consumer who took the initiative to 
establish the contact between the consumer and the service 
provider. 
(b) Prior to the conclusion of the contract, the trader assisting the 
consumer influenced key parts of its content, for example by 
drawing up specifications or providing a draft contract. 
3. If the Court were to consider that, in the cases referred to in Questions 
1, 2(a) or 2(b) above, the contract were not a distance contract for 
which a right of withdrawal existed: 
If, after the conclusion of that contract, the parties, again with the 
exclusive use of means of distance communication, conclude another 
agreement, the object of which is the provision of additional services 
by the service provider which are of lesser importance than those 
covered by the first contract: 
Is that additional agreement in itself a distance contract within the 
meaning of Article 2(7) of Directive 2011/83/E[U] for which a right of 
withdrawal exists under Article 9(1) of that directive, or is it, like the 
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main contract which it supplements, not subject to a right of 
withdrawal as a distance contract? 
4. If the consumer has exercised his or her right of withdrawal under a 
distance contract for which such a right exists after the other party to 
the contract has already provided services: 
Notwithstanding Article 14(4)(a) and (5) of Directive 2011/83/E[U], 
can the consumer be required to pay the trader adequately for the 
services he or she has provided if any other outcome would, in the 
light of all the circumstances of the case, be abusive or constitute a 
breach of good faith? 
II. […]. [Stay of proceedings] 
Grounds: 
I. Facts of the case 
The applicant seeks to have the defendant found liable to pay for scaffolding 
work. Following a declaration of withdrawal, the defendant is claiming 
reimbursement from the applicant of a payment on account which had already 
been made. 
The applicant hires out scaffolding, which it erects for its customers at the desired 
locations of building work and also dismantles afterwards. The defendant, a 
federal civil servant, owns a piece of land in Berlin on which a multi-storey block 
of flats is built. 
In 2020, the defendant decided to have two new storeys constructed on the top 
level of the building; these were to contain a total of four new dwellings for her 
own residential purposes. To that end, she commissioned an architect to plan and 
oversee the building work; the architect was also to draw up specifications for the 
required works, to obtain tenders from specialised undertakings and then to 
participate in the conclusion of the contracts by drawing up draft contracts. In 
accordance with that brief, the architect sent the applicant documentation 
including specifications for the scaffolding work (scaffolding of the entire front 
and rear of the house, together with complete enclosure of the existing top level), 
inviting it to submit a tender on that basis. The applicant entered unit prices on the 
specifications it had received along with an estimated total gross price of 
EUR 45 663.18, signed that tender on 24 April 2020 and returned it to the 
architect. 
The architect selected the applicant as the specialised undertaking for the 
scaffolding work. He drafted an appropriate contract, which made reference to the 
applicant’s tender of 24 April 2020, and emailed the draft contract to both parties 
on 14 December 2020; the draft contract did not contain an intimation that the 
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defendant had a right of withdrawal from the contract. The applicant signed the 
draft contract without amendment on that same day, 14 December 2020, and 
transmitted it to the defendant. The defendant signed it on 15 December 2020 and 
returned the copy signed by both parties to the applicant by post. 
In January 2021, the applicant began to erect the scaffolding. On 20 January 2021, 
the applicant emailed the defendant a supplementary offer for two additional 
loading bay platforms at a total gross cost of EUR 7 730.00 for assembly, 
dismantling and four weeks’ hire and, from the fifth week, an additional hire fee 
totalling EUR 517.65 gross per week. The defendant signed that supplementary 
offer and returned it to the applicant by email on 22 January 2021. 
The applicant released the scaffolding to the defendant for use from 26 January 
2021, and it was utilised henceforth for the construction activity on the building. 
By the end of May 2021, the defendant had paid a total amount of EUR 95 937.84 
in settlement of intermediate invoices from the applicant. 
By letter dated 7 December 2021, the defendant informed the applicant that she 
was withdrawing her declarations of intent to conclude the contract as well as the 
supplementary contract, refused to make further payments and demanded the 
return of her advance payments amounting to EUR 95 937.84. In December, all of 
the defendant’s planned building work for which scaffolding was required had 
been completed. Finally, at the defendant’s request, the scaffolding was 
dismantled on 20 December 2021. 
The applicant brought an action against the defendant before the Landgericht 
Berlin (Regional Court, Berlin) for payment of what it considered to be 
outstanding remuneration of EUR 101 000.25 under the contract for the provision 
of scaffolding. In those proceedings, the defendant filed a counterclaim for 
reimbursement of its advance payments amounting to EUR 95 937.84. 
In a judgment of 19 May 2023, the Regional Court dismissed the action and 
upheld the counterclaim in its entirety. The applicant challenges that decision by 
means of the appeal on which the Chamber has to rule. 
II. Relevant provisions of national law 
The provisions of national law in the applicable versions which are relevant to the 
determination of the appeal read as follows: 
Paragraph 242 of the Bürgerliches Gesetzbuch (German Civil Code) – 
Performance in good faith 
An obligor has a duty to perform according to the requirements of good faith, 
taking customary practice into consideration. 
Paragraph 312c – Distance contracts 
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(1) Distance contracts are contracts for which the trader, or a person acting in 
the trader’s name or on the trader’s behalf, and the consumer exclusively avail 
themselves of means of distance communication in negotiating and concluding the 
contract, except where the conclusion of the contract does not take place in the 
context of a sales or service-provision scheme organised for distance sales. 
(2) Means of distance communication within the meaning of this Code are all 
means of communication that may be used to initiate or to conclude a contract, 
without requiring the simultaneous physical presence of the contractual parties, 
such as letters, catalogues, telephone calls, faxes, emails, text messages sent via 
the mobile telephone service (SMS) as well as messages broadcast and sent via 
teleservices. 
Paragraph 357 – Legal consequences of withdrawal from off-premises contracts 
and distance contracts, with the exception of contracts relating to financial 
services 
(1) The performance received is to be restituted at the latest after fourteen days. 
[…] 
(8) Where the consumer withdraws from a contract for the provision of services 
[…], the consumer will owe the trader compensation for the value of the 
performance made until the time of the withdrawal in those cases in which the 
consumer has expressly demanded that the trader begin with the performance 
prior to expiry of the withdrawal period. The claim from the first sentence above 
only exists if the trader has properly informed the consumer in accordance with 
the first sentence, points 1 and 3, of Article 246a(1)(2) of the Einführungsgesetz 
zum Bürgerlichen Gesetzbuch (Introductory Act to the Civil Code). […] In 
calculating the compensation for value, the total price agreed upon is to be used as 
a basis. If the total price agreed upon is excessive, the compensation for value is to 
be calculated on the basis of the market value of the performance made. 
[…] 
III. On the reference for a preliminary ruling to the Court of Justice of the 
European Union 
In the view of the Chamber, the success of the appeal depends on the answers to 
the questions raised in the operative part of the order concerning the interpretation 
of Article 2(7) and Article 14(1) of Directive 2011/83/E[U]. 
That conclusion is based on the following considerations: 
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First question referred 
The Senate currently inclines to the view that at least the contract concluded 
between the parties with the involvement of the architect as a negotiating agent 
does not fall within the scope of Paragraph 312c(1) of the German Civil Code 
(Article 2(7) of Directive 2011/83/EU). 
It is true that the applicant, on the one hand, and the defendant and the architect, 
on the other, communicated, until the conclusion of the contract, with the 
exclusive use of means of distance communication, namely post or email. Given 
the protective purpose of Paragraph 312c of the German Civil Code, however, it is 
unlikely to be applicable, because the consumer used a specialised trader to 
initiate the contract. 
Paragraph 312c of the German Civil Code, by which Article 2(7) of Directive 
2011/83/EU is transposed into German law, is very largely identical to its 
predecessor, namely the old version of the first sentence of Paragraph 312b of the 
German Civil Code, which was based on Directive 97/7/EC of the European 
Parliament and of the Council of 20 May 1997 on the protection of consumers in 
respect of distance contracts (OJ 1997 L 144, 4.6.1997, p. 19). According to 
recitals 11 and 14 of Directive 97/7/EC, the reason for creating special rules for 
distance selling was that the consumer is not able actually to see the product or 
ascertain the characteristics and price of the service before concluding the 
contract. Recital 37 of Directive 2011/83/EU reiterates this clearly, at least in 
respect of goods. 
Accordingly, the purpose of Paragraph 312c of the German Civil Code, which is 
to be interpreted in conformity with the directive, is to compensate for two deficits 
which typify distance transactions, namely that the consumer cannot examine the 
good or service before concluding the contract and that he or she cannot turn to 
any natural person to obtain further information on the matter (see German 
Government bill, Bundestag printed paper 14/2685, p. 15; German Government 
bill, Bundestag printed paper 17/12637, p. 50; Bundesgerichtshof (Federal Court 
of Justice, Germany), judgment of 21 October 2004, case reference III ZR 380/03, 
paragraph 21 with further references). 
In the view of the Chamber, such information deficits are not to be expected if, in 
the initiation of the contract, the consumer uses as a negotiating agent a trader 
who, by reason of his or her professional activity, has sufficient expertise with 
regard to the services covered by the contract and who is available to the 
consumer to answer any queries. 
Second question referred 
If, notwithstanding those facts, the consumer still has a right of withdrawal, that 
will cease to be the case, in the view of the Chamber, if the negotiating agent, with 
knowledge of the construction project envisaged by the consumer, also specifies 
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the object of the service and approaches the consumer’s subsequent counterparty 
for the sole purpose of clarifying other contractual terms. That conclusion is not 
prejudiced by the fact that an offer of a contract made by the trader on that basis is 
subsequently accepted by the consumer alone (the same view, based on 
comparable considerations, is taken by the Oberlandesgericht Frankfurt (Higher 
Regional Court, Frankfurt, Germany) in its judgment of 2 November 2016, case 
reference 17 U 77/16, paragraph 55). 
Since it does not concern the scope of the protection of Article 2(7) of Directive 
2011/83/EU itself, the Chamber takes the view that it cannot concern the objective 
of a high level of consumer protection set out in Article 1 of Directive 
2011/83/E[U] either. 
Third question referred 
If the consumer is prevented from withdrawing his or her declaration of intent to 
conclude the original contract (main contract) for want of applicability of 
Paragraph 312c of the German Civil Code in the situations described in questions 
1, 2(a) or 2(b) above, the Chamber considers that the lack of a withdrawal option 
must also extend to any additional or supplementary agreements based on the 
main contract. 
In the field of building projects, not all of the services required for the 
implementation of the project are typically taken into account by the parties at the 
time when the contract is concluded. On the contrary, it is normally only after the 
building work has started that the need for other (individual) services emerges, 
and these are then agreed between the parties by means of addenda. If consumers 
were permitted to withdraw from supplementary agreements even in cases where 
the main contract was not subject to a right of withdrawal, it would often be left to 
chance to determine which of the required building services would have to be 
cancelled and which would not. 
In the view of the Chamber, such a fortuitous legal consequence, which is based 
solely on the time of conclusion of the additional agreement, cannot be the 
purpose of Article 2(7) of Directive 2011/83/EU, at least where the supplementary 
agreement is relatively insignificant compared with the main contract in terms of 
service level and estimated cost. 
The Chamber is aware that an additional order based on a contract already 
concluded, taken in isolation, may be regarded as an off-premises contract within 
the meaning of Article 2(8) of Directive 2011/83/EU (see Federal Court of Justice, 
judgment of 6 July 2023, case reference VII ZR 151/22). It considers, however, 
that, having regard to the protective purpose, the classification of the additional 
order as a distance contract is precluded if the main focus of the service is on the 
main contract and that contract does not constitute a distance contract on account 
of the consumer having enlisted the intervention of a trader. 
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Fourth question referred 
In so far as the defendant was able to exercise the right of withdrawal, however, 
on 7 December 2021 she would have effectively withdrawn her declaration of 
intent to conclude the contract in accordance with Paragraph 312g(1) of the 
German Civil Code, read in conjunction with Paragraph 355(1) thereof 
(Article 9(1) of Directive 2011/83/EU). The right of withdrawal had not yet 
expired, since the applicant had not informed her of that right when the contract 
was concluded on 15 December 2020 and a period of 12 months and 14 days had 
not yet elapsed; see the first two sentences of Paragraph 356(3) of the German 
Civil Code (Article 10 of Directive 2011/83/EU). 
As a result of that withdrawal, the applicant lost its right to the remuneration 
stipulated in the contract and should refund the payments already received to the 
defendant; see Paragraph 357(1) of the German Civil Code (Article 13 of 
Directive 2011/83/EU). 
According to the wording of Paragraph 357 of the German Civil Code (Article 14 
of Directive 2011/83/EU), the applicant would obtain nothing for the services it 
provided under the contract, since the service it provided to the defendant, namely 
the hire of scaffolding, is not a good that the defendant could return or make 
available for collection. The defendant, as a consumer, is under no obligation to 
provide compensation under Paragraph 357(8) of the old version of the German 
Civil Code (Article 14(4)(a) and (5) of Directive 2011/83/EU). 
In contrast to the cases referred by the Federal Court of Justice under point (b) of 
the first paragraph and the third paragraph of Article 267 TFEU (see Federal 
Court of Justice, order of 31 January 2022, case reference XI ZR 113/21), the 
Chamber does not wish to prevent the consumer from relying at all on her right of 
withdrawal. The Chamber does deem it necessary, however, not to apply the legal 
consequence of cancellation without compensation in every case but to make 
exceptions in certain circumstances and to grant the trader, in individual cases, at 
least limited compensation for his or her services. 
The Chamber is not unaware that the objective of ruling out compensation in 
Article 14(4)(a) and (5) of Directive 2011/83/EU is to provide a high level of 
consumer protection, the importance of which is regularly emphasised by the 
Court in its case-law (see, for example, Court of Justice, judgment of 17 May 
2023, C-97/22, paragraph 29 with further references). 
On the other hand, the case-law of the Court also recognises that EU law ‘cannot 
be relied on’ for abusive or fraudulent ends (see Court of Justice, judgment of 
13 March 2015, C-155/13, paragraph 29 with further references; see also 
judgment of 9 September 2021, C-33/20 et alia, paragraph 119 et seq.). 
In view of the foregoing, it is possible, in the opinion of the Chamber, to deny a 
consumer who has not been provided with the information referred to in 
Article 14(4)(a) of Directive 2011/83/EU, and who has withdrawn, on the basis of 
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Article 9(1) of Directive 2011/83/EU, from a contract for services already 
provided, the right to rely on the exclusion of compensation for non-returnable 
services; this would apply where, because of special circumstances in an 
individual case, the withdrawal constituted a breach of good faith. 
If the trader is thus granted compensation, this does not mean that the effect of the 
consumer’s withdrawal would be entirely transformed. It merely limits the effect 
to the extent that, in certain circumstances, the consumer is required to pay the 
trader financial compensation for the service; that amount may also be limited to 
only part of the agreed remuneration, which must be determined on a case-by-case 
basis and must not exceed, moreover, the amount of that remuneration. 
In the opinion of the Chamber, that approach is not contrary to the requirement of 
full harmonisation laid down in Article 4 of Directive 2011/83/EU, since the legal 
consequence for which the Directive provides in Article 14(4)(a) and (5) is not 
thereby modified in general terms but only partially in individual cases to be 
defined more precisely by the national courts. Thus the practical effectiveness of 
Directive 2011/83/EU is not prejudiced. Since that derives from the prohibition of 
abuses of rights and breaches of good faith, and since that principle is also 
recognised in EU law, a national court does not transcend the bounds of EU law 
when applying the law but operates within the sphere of an exception permitted by 
EU law itself. 
Since the present issue concerns the application of a rule of EU law to an 
individual case, the Chamber considers that it is not necessary at all, in principle, 
to ask the Court whether, in particular circumstances, reliance on a legal position 
created by EU law may be impermissible because of an abuse of rights or bad 
faith. On the contrary, that option always exists in individual cases, and the 
question when the conditions for such a case are fulfilled must be answered by the 
national courts when applying the law. The essential possibility of invoking the 
plea of bad faith need not be confirmed for every individual right derived from EU 
law by means of a reference to the Court (see Bundesverfassungsgericht (Federal 
Constitutional Court), order of 2 February 2015, case reference 2 BvR 2437/14, 
paragraph 42, and Federal Court of Justice, judgment of 16 July 2014, case 
reference IV ZR 73/13, paragraph 42, and judgment of 19 July 2013, case 
reference IV ZR 268/21). 
For that reason, the Chamber held in a previous judgment without prior reference 
to the Court of Justice that it may be contrary to good faith in particular 
circumstances if a consumer who has withdrawn from a contract for building 
services after the start of performance relies on the exclusion of compensation 
under the second sentence of Paragraph 357(8) of the German Civil Code 
(Article 14(4)(a) and (5) of Directive 2011/83/EU) against the trader (see Higher 
Regional Court, Berlin, judgment of 16 November 2021, case reference 21 U 
41/21, paragraphs 46-47). 
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The reason why the Chamber does now refer to the Court the question of the 
application in bad faith of Article 14(4)(a) and (5) of Directive 2011/83/EU is to 
be found in the Court’s judgment of 17 May 2023 (C-97/22). In that judgment, the 
Court ruled that Article 14(4)(a) and (5) of Directive 2011/83/EU must be 
interpreted as meaning that it exempts a consumer from any obligation to pay for 
performance provided pursuant to an off-premises contract, where the trader 
concerned did not provide him or her with the information referred to in 
Article 14(4)(a)(i) of that directive and that consumer exercised his or her right of 
withdrawal after the performance of that contract. 
In the view of the Chamber, that ruling of the Court may be understood as 
meaning that, in the situation under consideration in the present case, the trader 
can never be entitled to claim compensation for his or her service from the 
consumer. From the Chamber’s perspective, however, such exclusion of 
compensation without exception cannot be the correct interpretation, given that 
the Court itself has recognised the plea of abusive reliance on EU law. 
It is also significant that the question referred for a preliminary ruling to which the 
Court’s judgment of 17 May 2023 (C-97/22) relates is whether a trader may, as a 
general rule, be entitled to compensation for the consumer’s assets having been 
enhanced as a result of the trader’s construction work. 
Such an approach would alter the valuation contained in Article 14(4)(a) and (5) 
of Directive 2011/83/EU on an abstract and general level, thereby rendering it 
ineffective in practice. The purpose of the question referred by the Chamber, by 
contrast, is to narrow down the valuation contained in Article 14(4)(a) and (5) of 
Directive 2011/83/EU from the perspective of good faith in individual cases only 
and not to an extent which impinges on its practical effectiveness in general. 
In order to clarify its position, the Chamber adds that, in its view, a consumer’s 
reliance on the exclusion of compensation under Article 14(4)(a) and (5) of 
Directive 2011/83/EU may constitute a breach of good faith if the following 
cumulative conditions are met: 
– It cannot be established that the trader intentionally failed to inform the 
consumer in accordance with Article 14(4)(a)(i) of Directive 2011/83/EU. 
– The trader has provided the consumer with a building service which, for 
practical or economic reasons, is non-returnable. 
– The consumer is now using the result of that service on a permanent basis or 
has fully appropriated the intrinsic value of the service. 
– It is established that the compensation is not unreasonably high. 
This shows that, by virtue of the plea of bad faith, the exclusion of compensation 
under Article 14(4)(a) and (5) of Directive 2011/83/EU does not apply generally 
but only in particular exceptional cases which constitute a minor part of the 
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overall scope of those provisions, which means that it does not render them 
ineffective in practice. 
It is not necessary to rule, in the Chamber’s view, on whether, in such an 
individual case, there is also a ‘subjective element’ consisting in the consumer’s 
intention ‘to obtain an advantage from the EU rules by artificially creating the 
conditions laid down for obtaining it’ (see Court of Justice, judgment of 
26 February 2019, C-116/16 and C-117/16, paragraph 97 with further references). 
It is true that the Court has made the plea of abusive reliance on a rule of EU law 
dependent on that subjective element (see Court of Justice, judgment of 
26 February 2019, C-116/16 and C-117/16, paragraph 97 with further references, 
and [Federal Court of Justice,] judgment of 19 July 2023, case reference IV ZR 
268/21, paragraph 26). However, that cannot be a conditio sine qua non for 
reliance on a legal position in EU law to be classed as a breach of good faith in an 
individual case. On the contrary, inconsistent conduct on the part of the 
contracting party benefiting from EU law, which can be ascertained by reference 
to particular circumstances and which is clearly distinguishable from the 
customary performance of a contract, must suffice for that purpose (see Federal 
Constitutional Court, order of 2 February 2015, case reference 2 BvR 2437/14, 
paragraph 45, and Federal Court of Justice, judgment of 19 July 2023, case 
reference IV ZR 268/21, paragraph 26). 
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