The Balance Between Consumer Rights of Withdrawal and Merchant Rights to Compensation Under European Law
Contemporary consumer law confronts a fundamental challenge in balancing protection for the weaker party in legal relationships with the imperative of ensuring fairness for all participants in commercial transactions. Advocate General Andrea Biondini’s Opinion of September 18, 2025, in Case C-564/24 Eisenberger Gerüstbau GmbH v. JK represents a watershed moment in the discourse concerning the proper boundaries of such protection. This issue bears particular relevance for Polish entrepreneurs who daily navigate the complexities inherent in implementing Directive 2011/83/EU on consumer rights.
Legal and Regulatory Framework
Directive 2011/83/EU of the European Parliament and of the Council of October 25, 2011, on consumer rights constitutes a cornerstone of European consumer law. Its objective is to ensure a high level of consumer protection while maintaining the functionality of the internal market. This regulation, transposed into Polish domestic law, establishes a comprehensive system of consumer rights, including the fundamental right to withdraw from distance contracts or contracts concluded away from business premises.
Article 2(7) of the Directive assumes critical importance in defining a distance contract as any contract concluded between a trader and a consumer under an organized distance sales or service-provision scheme without the simultaneous physical presence of the parties, with the exclusive use of means of distance communication. This definition acquires new dimensions in the context of the increasingly widespread digitalization of business processes and the growing role of intermediaries in contract formation.
Analysis of the Factual Circumstances
The case before the CJEU originates from an ostensibly straightforward commercial situation. A building owner in Berlin decided to undertake an expansion of her property, commissioning an architect not only to prepare project documentation and provide construction supervision but also to assist in concluding necessary contracts with contractors. This apparently standard model of collaboration contains elements that proved crucial for interpreting consumer protection provisions.
The architect, acting on behalf of and for the benefit of the investor, selected Eisenberger Gerüstbau GmbH as the scaffolding services contractor and prepared a draft contract, which was subsequently transmitted electronically to both his principal and the selected contractor. This draft, later signed by both parties in December 2020, did not contain the legally required notice concerning the right of withdrawal. Following the installation of scaffolding and the conclusion of an additional supplementary contract, also via electronic means, the contractor delivered the scaffolding for use.
The genuine surprise for all involved parties, however, was what transpired in December 2021. Despite the fact that construction work had been completed and the scaffolding had been utilized throughout in accordance with its intended purpose, investor JK submitted a declaration of withdrawal from the contract, demanding return of paid amounts and refusing further payments. This situation presented German courts, and subsequently the CJEU, with a fundamental question concerning the limits of consumer protection and the possibility of its abuse.
Preliminary Questions as a Map of Interpretive Challenges
The German Kammergericht, confronting this dilemma, formulated four preliminary questions that may be treated as a roadmap of the most significant interpretive challenges in contemporary consumer law. The first question concerns the very essence of the definition of distance contracts in situations where the consumer utilizes the assistance of a professional intermediary. Does the fact that the architect acted as advisor and intermediary affect the legal qualification of the concluded contract?
The second question deepens this problematic, focusing on the particular roles that an intermediary supporting the consumer may play. Does the initiation of contact between parties or influence on essential elements of contract content by the architect alter the legal characterization of the entire relationship? These issues assume fundamental significance in the era of the digital economy, where intermediation in various forms becomes the standard.
The third question relates to the legal status of additional contracts concluded after the main contract. In cases where the main contract does not qualify as a distance contract, can additional agreements concluded exclusively through electronic means be treated as separate contracts subject to withdrawal provisions?
Most significant, however, from both theoretical and practical perspectives, is the fourth question. It concerns situations in which the consumer, despite the absence of proper information about the right of withdrawal, exercises this right after full performance of the contract by the trader. Can the consumer in such circumstances be obligated to return the value of received performances if the absence of such obligation would constitute an abuse of rights?
The Advocate General’s Position as an Attempt at New Balance
Advocate General Andrea Biondini in his Opinion presented an innovative approach to interpreting the Directive’s provisions that may fundamentally alter perceptions of the relationship between consumer protection and fairness in commercial relations. Regarding the first three questions, the Advocate General adopted a relatively liberal position, acknowledging that the architect’s assistance does not affect the legal qualification of the contract as concluded at a distance.
Critical significance, however, attaches to the response to the fourth question, where the Advocate General introduces the concept of limiting the absolute character of consumer protection in cases of evident abuse. Although Directive 2011/83/EU does not contain expressis verbis provisions concerning abuse of rights by consumers, the Advocate General refers to general principles of European Union law that prohibit such utilization of EU provisions that would be contrary to their purpose and spirit.
This interpretation rests upon the fundamental principle that law cannot serve as an instrument of injustice, even when it serves to protect the weaker party. The Advocate General indicates that in light of all circumstances of the case, where the consumer utilized the scaffolding for over a year, completed construction work, and subsequently withdrew from the contract demanding return of paid amounts, a situation contrary to good faith and constituting abuse of rights may arise.
Implications for Commercial Practice
The Advocate General’s position carries far-reaching consequences for commercial practice, particularly in the context of traders’ activities providing services to consumers. First, it confirms that mere utilization by the consumer of professional assistance in concluding contracts does not deprive him of consumer status nor affect the contract’s qualification as concluded at a distance. This represents an important determination in an era when utilization of advisory, brokerage, or intermediary services becomes standard.
Simultaneously, the Opinion introduces an element of uncertainty regarding the absolute character of consumer protection. Traders who previously had to reckon with the risk of complete loss of remuneration in case of breach of informational obligations may now, under specific circumstances, count on protection against evident abuses by consumers. This solution, though fair from the standpoint of equity principles, introduces an additional layer of complexity in legal risk assessment.
Particularly significant are the implications for industries where service provision has an irreversible character or where its reversal involves significant costs. Construction, renovation, or other service-performing companies may find themselves in situations where, despite formal breach of informational obligations, they will be able to demand fair compensation for performed services.
Risks and Implementation Challenges
The solution proposed by the Advocate General, however, also carries significant risks and implementation challenges. The fundamental problem is the necessity for courts to assess whether in a concrete case there occurred an “abuse of rights” by the consumer. This assessment, subjective by nature, may lead to inconsistent jurisprudence and legal uncertainty that may be particularly burdensome for small and medium-sized enterprises.
Moreover, introduction of such a “fairness clause” may paradoxically weaken incentives for traders to scrupulously fulfill informational obligations. If breach of these obligations no longer automatically signifies loss of entire remuneration, some traders may be inclined to neglect compliance, counting on the possibility of obtaining partial compensation in case of dispute.
There also exists the risk that such an approach may lead to erosion of the consumer protection system. Consumers, aware of the possibility of adjudication against them of obligation to pay for received services, may be less inclined to exercise their rights, which would signify de facto weakening of the protection level envisioned by the EU legislator.
Broader Context of Consumer Law Evolution
The Advocate General’s Opinion fits within a broader trend of consumer law evolution in the European Union, characterized by departure from mechanical application of protective provisions toward a more nuanced approach considering all circumstances of the case. This tendency is visible in other areas of EU law as well, where principles of proportionality and procedural fairness play an increasingly significant role.
It bears noting that such an approach does not signify weakening of consumer protection per se, but rather its rationalization and adaptation to the realities of contemporary commercial transactions. In an era when traditional divisions between consumers and traders become increasingly fluid, and consumers often utilize professional advice in concluding contracts, rigid application of protective provisions may lead to situations contrary to principles of fairness.
Practical Recommendations for Traders
In light of the Advocate General’s presented Opinion, traders operating in the consumer market should above all maintain the highest diligence in fulfilling informational obligations provided by Directive 2011/83/EU. The Advocate General’s Opinion does not exempt from these obligations but merely introduces the possibility of protection against evident abuses under exceptional circumstances.
Simultaneously, traders should prepare for a new legal reality in which assessment of consumer claims will require more detailed analysis of all case circumstances. Documenting the scope of performed services, their value, and benefits obtained by the consumer may prove crucial in disputes concerning withdrawal from contracts after their performance.
Particular attention should be paid to long-term contracts or those whose performance has a staged character. In such cases, the risk of late withdrawal by the consumer after partial or complete performance is particularly high, and the possibility of obtaining fair compensation according to the Advocate General’s proposal may assume crucial significance for business profitability.
Prospects and Conclusions
The CJEU Advocate General’s Opinion in Eisenberger Gerüstbau GmbH represents an attempt to find new balance in consumer law that would consider not only the need to protect the weaker party but also principles of fairness and proportionality. Should it be accepted by the CJEU in its final judgment, it may constitute a turning point in interpreting consumer protection provisions throughout the European Union.
For Polish traders and lawyers, this signifies the necessity of preparing for potential changes in approaches to consumer disputes. Traditional, mechanical application of contract withdrawal provisions may be replaced by a more flexible system in which concrete case circumstances and assessment whether the consumer’s claim constitutes abuse of rights will assume decisive significance.
Regardless of the CJEU’s ultimate determination, the Advocate General’s Opinion itself signals an important shift in approaches to the relationship between consumer protection and fairness in commercial relations. This evolution, though carrying new challenges and uncertainties, may ultimately contribute to creating a more balanced and equitable consumer law system that will better correspond to contemporary economic realities.
What remains crucial, however, is maintaining proper proportions between the need to protect consumers and the necessity of ensuring fair conditions for all participants in commercial transactions. The Advocate General’s Opinion constitutes an important voice in this debate, but the ultimate determination concerning the direction of consumer law evolution in Europe will rest with the CJEU.
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.
