In this legal circular, we will briefly introduce certain legal issues which the Court of Justice of the European Union has recently addressed or will address in the near future. Although the individual cases mentioned were not or are not always directly related to the sale of goods to consumers, the legal conclusions reached may have implications for this area as well.

Judgment in Case C-329/19 Condominio di Milano, via Meda v Eurothermo SpA

In this judgment of 2 April 2020, the Court confirmed, as expected, that for the purposes of the Directive on unfair terms in consumer contracts, only a natural person may be a consumer. However, the CJEU also expressed the view that the Directive does not preclude national law (case law) from extending the protection enjoyed by consumers to other entities. From our perspective, it is appropriate to point out that the extension of statutory provisions regulating consumer protection to relationships with other entities (traders, legal persons) cannot be excluded even through contractual arrangements of the trader. In an unreported case decided by lower courts in the Czech Republic, precisely such a situation occurred. An unfortunate definition of the term consumer in the trader’s terms and conditions led the court to grant the right to withdraw from the purchase contract within 14 days without giving reasons to a legal person as well. For these reasons, we recommend that traders avoid any contractual definitions of consumer. And leave the definition of this term entirely to the statutory regulation, which cannot be “improved” by any effort of the trader.

Judgment in Case C-208/19 NK v MS, AS

As is well known, a consumer is not entitled to withdraw from a purchase contract for the supply of goods which have been “made to the consumer’s specifications or clearly personalised”. However, in the case before the CJEU, the question arose whether this exception should not also apply to the provision of services the result of which is a tangible output of the trader. Specifically, the dispute was between an Austrian consumer and an architect under a contract pursuant to which the architect undertook to prepare project documentation for a house for the consumer according to his requirements and wishes. In its judgment of 14 May 2020, the CJEU took the position that exceptions to the consumer’s right of withdrawal from a contract must be interpreted narrowly (restrictively) and that in this case “it is not a contract for the supply of goods made according to the consumer’s specifications or goods adapted to personal needs” within the meaning of Article 16(c) of the Consumer Rights Directive. This means that in this case, the consumer could validly withdraw from the concluded contract for the provision of services without giving reasons, even though the result of the trader’s activity was highly individualised.

Preliminary Question in Case C-529/19 - Möbel Kraft GmbH & Co. KG v ML

Even in this as yet undecided case, the CJEU will address the question of interpretation of the provision regulating the exception to the consumer’s right to withdraw from a purchase contract for the supply of goods which have been made to the consumer’s specifications or clearly personalised (see above). Specifically, the Court has been presented with an interesting preliminary question as to whether the right to withdraw from a purchase contract does not apply to the consumer even in a case where the seller has not yet begun manufacturing the goods under the contract, where the adaptation of the goods would be carried out by the trader himself (not through a third party). And further, whether this question is not influenced by the circumstance that the goods could be restored to their state before adaptation only with minor dismantling costs (approximately 5 per cent of the value of the goods). However, we will have to wait a while longer for these questions to be answered by the Court of Justice of the European Union.

Josef Aujezdský

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 5/2020 intended for members of this association.

This text was translated from Czech to English using an AI translator.