The case was brought by Verein für Konsumenteninformation (VKI), a consumer organisation, against Sofatutor, a provider of an online learning platform. The trader allowed consumers to test the platform free of charge for 30 days from signing up and terminate the contract at any time during that period. Pursuant to the standard terms, if the contract was not terminated on time, the paid subscription period started. Moreover, the contract was renewed again, if it was not terminated before the paid subscription period ended.
According to the VKI, Sofatutor violated the national provisions implementing Article 9(1) of Directive 2011/83/EU on consumer rights (CRD), in that it restricted the consumers' right of withdrawal. The organisation argued that the consumers have a right of withdrawal not only when they book a free trial, but also when a free subscription is converted into a paid one and when that paid subscription is renewed. Unsure which interpretation to follow, the Supreme Court of Austria decided to stay the proceedings and refer the question to the CJEU.
Judgment of the Court
Regrettably, the Court denied a higher level of consumer protection in the present case and failed to even recognize the issue. Despite increased attention devoted to the risks of renewable subscriptions (see e.g. C. Busch, Pay to Play...), the Court chose to brush off the differences between the sale of goods and the (long-term) provision of services. The judgment devoted considerable attention to the purpose of the right to withdraw, noting that it is "intended to offset the disadvantage for the consumer resulting from a distance contract by granting him or her an appropriate period for reflection during which he or she can examine and test the goods acquired" (para. 39). According to the Court, the same reasoning applies to the sale of goods and the performance of services (para. 41), although there was no explanation for that statement.
The finding that there are essentially no differences between the sale of goods and the (long-term) provision of services, as far as the right to withdraw is concerned, led the Court to narrow its focus to just one point in time, i.e. when the contact is first concluded. In particular, the ruling stressed the importance of providing consumer with all required information at this stage. Eventually, a direct link between mandatory disclosure and the purpose of the right of withdrawal was established (para. 47).
For the Court, if all relevant terms for the future relationship are clearly communicated at the time of contract conclusion, then there is nothing to justify a new right of withdrawal at a later point in time, or any related business obligations. In reaching this conclusion, the Court explicitly precluded a more protective national reading of the right to withdraw, such as that which apparently existed under Austrian law (paras. 24 and 38).
Concluding thoughts
My main critique of the Sofatutor judgment is its apparent ignorance of the real problems that consumers are facing in the subscription economy. This is especially the case for the contract renewal, which typically takes place quite a while after the initial contract was concluded. The Court may have acknowledged that the right of withdrawal is not well-suited to the present scenario and that attention should rather turn to the right of termination (not harmonised in the CRD). However, the judgment does not even suggest that there would be any protection need. Instead, it maintains the fictitious image of the consumer - a consumer whose protection needs are limited to sufficient disclosure at the time of contract conclusion, even in long-term contracts.
If the Court wanted to innovate on the right of withdraw, the CRD arguably offers some openings for doing so. Most importantly, the purpose of the right does not need to be limited to inspecting the goods (and, in particular, services). Indeed, its purpose is already quite different for off-premises contracts (e.g. doorstep sales), where the consumer is being provided with a "cooling-off period". It is accepted that the consumer may in those cases be taken by surprise and not really be able to assess the pros and cons of entering into a contract. It seems plausible that a consumer, who enters into a long-term relationship is similarly unable to imagine him or herself a year or so from now. Perhaps it is the renewal that takes the consumer by surprise and could thus justify a new right of withdrawal.
What is clear following the Sofatutor judgment, is that de lege lata the right of withdrawal cannot be a solution to renewable subscriptions. Our attention must therefore turn to other legal options discussed in scholarship, such as reminders about auto-renewals. Possibly, it is also time to take a closer look at consumers' termination rights - under the UCTD and beyond.
