Order;Summary — ECLI:EU:C:2019:1091
Date: 2019-12-17
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-465/19 — 1 
Case C-465/19 
Request for a preliminary ruling 
Date lodged: 
19 June 2019 
Referring court: 
Amtsgericht Straubing (Germany) 
Date of the decision to refer: 
12 June 2019 
Applicant: 
B & L Elektrogeräte GmbH 
Defendant: 
GC 
  
Amtsgericht Straubing 
[...] 
In the case of 
B & L Elektrogeräte GmbH [...] 
– Applicant – 
[...] 
v 
GC [...] 
– Defendant – 
EN 
REQUEST FOR A PRELIMINARY RULING OF 12. 6. 2019 — CASE C-465/19 
 
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[...] 
in relation to claim and determination 
the Amtsgericht Straubing (Local Court of Straubing, Germany) [...] issued, on 
12 June 2019, the following 
Order 
I. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267(1)(a) and (2) TFEU: 
Does an off-premises contract within the meaning of Article 2(8)(c) of Directive 
2011/83/EU, with the consequence of entailing a right of withdrawal pursuant to 
Article 9 of the directive, arise if a trader at a trade fair who is in or in front of a 
sales stand that is deemed to constitute business premises within the meaning of 
Article 2(9) of the directive solicits a consumer who is standing in the aisle in 
front of the sales stand in an exhibition hall at a consumer trade fair without 
communicating with the trader, and the contract is subsequently concluded in the 
sales stand? [Or. 2] 
II. The proceedings are stayed pending a ruling from the Court of Justice of the 
European Union on the question referred. 
Reasons 
Regarding I. 
a) Facts of the case 
The applicant sells steam vacuum cleaners at various fairs, including the 
Gäubodenvolksfest in Straubing. This fair has various exhibition halls in which 
inter alia the vendor sells its products. The applicant requests that the defendant 
pay a purchase price for a steam vacuum cleaner purchased at that exhibition. 
In the context of taking evidence, the referring court established that the defendant 
and his wife stayed in the aisle in front of the applicant’s exhibition stand and 
talked briefly about the similarity between the name of the applicant’s product and 
that of their own vacuum cleaner at home. During that conversation, the defendant 
and his wife remained standing in front of the stand, facing the applicant’s 
exhibition stand. 
A sales assistant of the applicant then addressed them from the stand or in the 
aisle in order to convince them to purchase a steam vacuum cleaner. Together 
with his wife, the defendant then went into the stand at the invitation of the 
vendor’s employee, where a sales contract was concluded a few moments later. 
The defendant later declared that he no longer wished to adhere to the contract. 
B & L ELEKTROGERÄTE 
 
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The defendant takes the view that he has a right of withdrawal. Information 
regarding that right had not been provided. 
For the referring court, it has been established that, taking account of the case-law 
of the Court of Justice of the European Union in Case C-485/17 [...], the 
applicant’s stand constitutes movable business premises within the meaning of 
Directive 2011/83/EU. 
b) National legal situation 
aa) Formal legal situation 
Article 2(8) and Article 9(1) of Directive 2011/83/EU are transposed into the 
German Bürgerliches Gesetzbuch (Civil Code, ‘the BGB’) by the following 
provision: [Or. 3] 
‘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. concluded during an excursion organised by the trader or with his assistance 
in order to promote and sell goods or services to the consumer and conclude 
corresponding contracts with him. 
Persons acting in the name of the trader or on his 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 activity on a permanent basis, and 
any movable retail premises where the trader carries out his activity on a usual 
basis. Retail premises where the person who is acting in the name of the trader or 
on his behalf carries out his activity on a permanent basis or on a usual basis are 
equivalent to premises of the trader.’ 
The wording used to transpose the directive is largely identical (Bt-Drs. 
[Bundestag document] 17/12637, p. 49, still numbered as Paragraph 312a BGB 
REQUEST FOR A PRELIMINARY RULING OF 12. 6. 2019 — CASE C-465/19 
 
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there). In that document, the legislature made the following statements regarding 
point 3: 
‘Regarding point 3 
Point 3 covers contracts in which the consumer is personally and individually 
addressed in an off-premises context but the contract is not concluded until 
immediately afterwards on the business premises of the trader or through a means 
of distance communication. Point 3 covers, in particular, situations where the 
consumer is addressed in public areas of circulation in front of the trader’s shop, 
in the context of which a leaflet may also be handed to the consumer. In this 
situation too, the consumer may be under pressure or may be confronted with an 
[Or. 4] element of surprise. It does not cover cases in which the trader first comes 
to the consumer’s home strictly with a view to taking measurements or giving an 
estimate without any commitment of the consumer and where the contract is 
concluded only at a later point in time on the business premises of the trader on 
the basis of the trader’s estimate. In those cases, the contract is not to be 
considered as having been concluded immediately after the trader has addressed 
the consumer if the consumer has had sufficient time to check the estimate of the 
trader before concluding the contract (recital 21).’ 
bb) Case-law 
As far as can be seen [...] [reference to a database search performed by the 
referring court], case-law of the German courts has not been published. 
Until the directive was transposed, the valid version of the provision, insofar as is 
relevant, (Paragraph 312 BGB, old version) read as follows: 
‘(1) [...] In the case of a contract between a trader and a consumer which relates to 
performance for valuable consideration and which the consumer has been 
induced to conclude 
1. by oral negotiations at his place of work or in a private home, 
2. at a recreational event organised by the trader or by a third party operating at 
least in the interest of the trader or 
3. after being solicited unexpectedly on a means of transport or publicly 
accessible thoroughfare 
(doorstep selling) the consumer has a right of withdrawal pursuant to 
Paragraph 355.’ 
The scope of this provision was therefore significantly narrower, as was the 
former Directive 85/577/EEC. Since the new legislation entered into force, no 
case-law relating to it has been published. 
B & L ELEKTROGERÄTE 
 
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c) Grounds for the request for a preliminary ruling 
It is questionable for the referring court whether the defendant has a right of 
withdrawal pursuant to point 3 of Paragraph 312b(1) [Or. 5] BGB in the present 
case. The provision transposes Article 2(8)(a) of the directive using identical 
wording. The directive is fully harmonised. The German legislature also wanted to 
transpose precisely this full harmonisation. 
The special nature of the present case raises several questions for the referring 
court which, on account of the full harmonisation, necessitate a ruling from the 
Court of Justice of the European Union. 
The hall in which the sale took place serves the sole purpose of concluding 
consumer contracts. The consumer must have therefore expected to be addressed 
by a trader, even in front of the exhibition stand. 
In addition, an exhibition stand is not an enclosed space, meaning that the 
consumer must therefore also have expected to be approached even if he does not 
move up to or into the trader’s exhibition stand of his own accord, but remains 
standing in the middle of the aisle running through the hall. 
At the same time, however, the aisle running through the hall is clearly not the 
business premises of the trader, because it does not serve to enable him to conduct 
business, but rather serves to provide access for all the traders in the hall. Recital 
22 of the directive could be more applicable here, pursuant to which ‘Spaces 
accessible to the public, such as streets, shopping malls, beaches, sports 
facilities and public transport, which the trader uses on an exceptional basis for his 
business activities as well as private homes or workplaces should not be regarded 
as business premises.’ In that respect, the referring court is aware that this recital 
does not serve to delineate the area of the business premises, but rather intends to 
make clear that the use of such public areas on an exceptional basis should not in 
principle constitute business premises. 
From a purely formal perspective, the conditions of the right of withdrawal are 
therefore satisfied; in any event, if the simultaneous presence of the consumer and 
the trader also covers cases in which the consumer stays outside of the business 
premises and the trader stays inside them. The referring court assumes that those 
cases do in principle lead to a right of withdrawal, for instance if the trader of 
immovable business premises addresses the consumer individually through a 
window. The reason for this is that, in the view taken by the referring court, that 
criterion is intended to exclude only categories of cases in which the consumer is 
‘solicited’ away from business premises for instance via electronic media or other 
advertising. 
In Case C-485/17 of the Court of Justice of the European Union, it ruled as 
follows: ‘It follows from [Or. 6] all the foregoing considerations that the answer 
to the questions referred is that Article 2(9) of Directive 2011/83 must be 
interpreted as meaning that a stand, such as that at issue in the main proceedings, 
REQUEST FOR A PRELIMINARY RULING OF 12. 6. 2019 — CASE C-465/19 
 
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run by a trader at a trade fair, at which he carries out his activity for a few days 
each year, constitutes “business premises” within the meaning of that provision if, 
in the light of all the factual circumstances surrounding that activity, in particular 
the appearance of the stand and the information relayed on the premises of the fair 
itself, a reasonably well-informed and reasonably observant and circumspect 
consumer could reasonably assume that the trader is carrying out his activity there 
and will solicit him in order to conclude a contract, which is for the national court 
to ascertain.’ (paragraph 46) 
The question therefore arises as to whether, on account of the objective of that 
directive, the circulation area of an exhibition hall in front of the stands of the 
trader is to also be accepted as business premises, in any event in cases where a 
consumer can expect to be addressed by the trader there, or whether a right of 
withdrawal does not exist for teleological considerations. 
Regarding II. 
[...] [procedural matters concerning the staying of proceedings] 
[...] [name of the judge who issued the decision] 
[...] [certification as true copy]