In Case C‑529/19 (here), the CJEU interpreted the Consumer Rights Directive, particularly the right of withdrawal and its exceptions (Article 16). In this case, the consumer bought a fitted kitchen from Möbel Kraft (a German furniture company) at a trade fair. Later, the consumer communicated to Möbel Kraft its wish to withdraw from the contract. Consequently, the consumer refused to accepted delivery of the kitchen. In response, Möbel Kraft sued for breach of contract. Möbel Kraft had not yet started to manufacture the kitchen parts at issue when the consumer withdrew from the contract.
While Article 9 of the Consumer Rights Directive gives consumer
the right to withdraw from an off-premises or distance contract, Article 16 lists
several situations where that right does not apply. One of those situations is
when the consumer buys goods made to the consumer’s specifications or clearly personalized
(Article 16(c)). Given Article 16(c), the referring court asked the CJEU whether
the consumer’s right to withdraw from an off-premises contract is also excluded
in case where goods are made according to the consumer’s specifications, but the
seller has not yet begun to produce the goods and therefore does not incur in
any (or few) costs in case of the consumer’s withdrawal.
The CJEU starts by clarifying that the contract in question can
only be considered an off-premises contract if it was not concluded at the
trade fair stand, which can be seen as ‘business premises’ according to Article
2(9) of the Consumer Rights Directive. Then, the CJEU states that there is
nothing in the Consumer Rights Directive that indicates that the exception of
Article 16(c) is dependent on the occurrence of any event after the conclusion
of the off-premises contract (para 24). In fact, the CJEU states that this
exception is inherent to the subject matter of such a contract. In other words,
the application of this exception is independent from the stage of performance
of the contract (or the stage of production of the products in question) (para
24). Consequently, the CJEU determines that the exception to the right of
withdrawal in off-premises contracts where the consumer acquires personalized
goods applies from the outset of the contract. The CJEU extracted this conclusion
not only from the literal element of Article 16(c) but also from its systematic
element, since Article 6(1)(h) and (k) of the Consumer Rights Directive impose
a pre-contractual duty on the trader to inform the consumer of the existence or
absence of a right of withdrawal (para 25). If the existence of a right of
withdrawal would be dependent on a decision of the trader (namely when to start
performing the contract), the goal of providing the mandated pre-contractual
information would be frustrated (para 27). Finally, to allow the right of withdrawal
to depend on the moment in time where the trader starts to produce the goods
would be contrary to legal certainty (para 28).
With this decision, the CJEU establishes the inflexible character
not only of the right of withdrawal but also of its exceptions. The CJEU’s
decision opts for legal certainty over consumer protection considering that, in
practice, this means that every time that a consumer acquires a personalized
product she can never withdraw from that contract, regardless of the actual
costs suffered by the business. Therefore, the CJEU directly contradicts national
case law from, for example, the Bundesgerichtshof, which previously determined
that the right of withdrawal is not excluded if the goods can be restored at a
low cost to the condition they were in prior to the personalization.
