In our legal circulars, we most frequently address issues concerning the sale of tangible goods to consumers. However, an increasing number of traders and several members of APEK offer consumers services in the internet environment, including services provided on a subscription basis. For these reasons, we shall today examine more closely a recent and relatively interesting judgment of the Court of Justice of the European Union in the case of Verein für Konsumenteninformation v. Sofatutor GmbH (C‑565/22). The subject matter of this judgment was specifically the issue of withdrawal from a contract for the provision of services by a consumer (without giving reasons).

The circumstances of the case were such that Sofatutor GmbH operated an online educational platform for pupils (consumers) in Austria. The following conditions were agreed between the user and Sofatutor GmbH. The user could test the service free of charge for 30 days from the conclusion of the contract and terminate the use of the service (the contract) at any time during this period without a notice period. In the event that the contract was not terminated by the consumer during these 30 days, the paid subscription period agreed at the time of conclusion of the contract began to run. In the event that the paid subscription period expired without Sofatutor GmbH or the consumer terminating the contract, the subscription was automatically renewed (again for a fixed term).

This contractual model of Sofatutor GmbH was challenged before an Austrian court by a consumer rights organisation (Verein für Konsumenteninformation) on the grounds that, in this case, the consumer should have the right to withdraw from the contract for the provision of services (without giving reasons) not only in the case of a free trial subscription for 30 days, but also in the case of the conversion of this subscription into a standard paid subscription and in the case of renewal of this subscription.

Specifically, therefore, the matter concerned the interpretation of Article 9(1) of the Consumer Rights Directive, which provides that the consumer shall be ‘granted a period of 14 days to withdraw from a distance contract or an off-premises contract without giving any reason and without incurring any costs…’. According to Article 9(2) of the Consumer Rights Directive, this period of 14 days runs from the conclusion of the contract for the provision of services. This means that the right of withdrawal from the contract by the consumer is always related to the moment of conclusion of the contract for the provision of services (and not to other facts such as the conversion or extension of the subscription). In a similar spirit, Section 1829(1) of the Czech Civil Code is also constructed, which provides that ‘a consumer may withdraw from a contract concluded by distance means or from a contract concluded outside business premises within a period of fourteen days. Unless otherwise provided below, the period shall expire fourteen days from the date of conclusion of the contract.’ From a legal point of view, therefore, there is no clear reason why, as a result of the conversion of the subscription to a paid one or as a result of the extension of the subscription, the consumer should again acquire the right to withdraw from the contract.

In the case in question, the CJEU ultimately inclined towards this interpretation, ruling that Article 9(1) of the Consumer Rights Directive must be interpreted as meaning that ’the right of a consumer to withdraw from a distance contract is guaranteed only once, in respect of a contract for the provision of services in which an initial free period is agreed in favour of the consumer, after which, if the consumer does not terminate or withdraw from the contract during that period, a paid period follows which, if the contract is not terminated, is automatically renewed for a fixed term, provided that the condition is met that, when concluding that contract, the consumer is informed by the trader in a clear, comprehensible and express manner that, after the expiry of that initial free period, the provision of services will become chargeable.’

The above-mentioned judgment is therefore interesting particularly in that it is one of the few cases where the court has not recently sided with an interpretation more favourable to consumers.

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. 10/2023 intended for members of that association.

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