The Consumer’s Right of Withdrawal and the Trader’s Right to Compensation
Recalibrating the Boundaries of Protection Under European Law
The perennial tension at the heart of consumer protection law — how to shield the weaker party to a transaction without inflicting injustice upon the stronger — has acquired fresh urgency. The consumer’s right of withdrawal from a contract, arguably the most consequential entitlement conferred by the EU legislature on natural persons acting outside their trade or profession, cannot operate in an axiological vacuum. The Opinion of Advocate General Biondi, delivered on 18 September 2025 in Case C‑564/24, Eisenberger Gerüstbau GmbH v. JK, represents a significant intervention in this debate, proposing a doctrinal framework that would, for the first time, subject the exercise of withdrawal rights under Directive 2011/83/EU to the discipline of the abuse-of-rights doctrine. For practitioners across the European Union — and particularly those advising businesses that provide services of an irreversible character — the Opinion signals a potential inflection point in the jurisprudence.
The Regulatory Architecture of the Right of Withdrawal
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights constitutes the foundational instrument of EU consumer contract law. Its animating purpose — stated expressly in Recital 4 — is to strike “the right balance between a high level of consumer protection and the competitiveness of enterprises.” Transposed into the national legal orders of all Member States, the Directive establishes a comprehensive regime of consumer entitlements, among which the right of withdrawal from distance contracts and off-premises contracts occupies a central position.
The definitional architecture of Article 2(7) is critical. A “distance contract” is any contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme, without the simultaneous physical presence of the parties, with the exclusive use of one or more means of distance communication up to and including the moment of conclusion. This definition acquires new dimensions as the digitalisation of commercial processes accelerates and intermediaries assume an increasingly prominent role in the formation of consumer contracts. The consumer’s right of withdrawal — exercisable within fourteen days without the need to state reasons, or within twelve months where the trader has failed to provide the requisite pre-contractual information (Article 10(1)) — serves as the primary mechanism for redressing the informational asymmetry inherent in distance contracting.
It bears emphasis, however, that the Directive does not purport to occupy the entire field of contract law. Article 3(5), read in conjunction with Recital 14, expressly preserves national contract law in respect of matters not governed by the Directive — including the validity and formation of contracts, general contractual remedies, and the rules of public economic order. This jurisdictional delimitation, as will become apparent, carries profound implications for the doctrinal analysis that follows.
The Existing Jurisprudence: A Doctrinal Tension
A proper appreciation of the Advocate General’s Opinion requires situating it within the existing case law of the Court of Justice. Two prior judgments define the doctrinal space into which the Eisenberger reference intrudes.
In its judgment of 17 May 2023 in Case C‑97/22, DC (Withdrawal after Performance of the Contract), the Court held that Article 14(4)(a)(i) and Article 14(5) of Directive 2011/83/EU must be interpreted as meaning that a consumer is relieved of any obligation to pay for services already rendered where the trader failed to provide the information on the right of withdrawal required by Article 6(1)(h) and the consumer subsequently exercised that right after the contract had been fully performed. The Court grounded this conclusion in “the fundamental importance which Directive 2011/83 ascribes to the pre-contractual information regarding the right of withdrawal.”
Simultaneously, the Court articulated a seemingly countervailing principle in its judgment of 21 December 2023 in Joined Cases C‑38/21, C‑47/21, and C‑232/21, BMW Bank and Others, concerning Directive 2008/48/EC on consumer credit agreements. There, the Court reasoned that “since the performance of a contract constitutes the natural mechanism for extinguishing contractual obligations,” a consumer can no longer rely on the right of withdrawal once the credit agreement has been performed in full and the mutual obligations arising from it have come to an end.
The tension between these two lines of authority — the absolute informational sanction of DC on the one hand, and the performance-based extinction of withdrawal rights in BMW Bank on the other — constitutes precisely the doctrinal aperture into which Advocate General Biondi’s Opinion in Eisenberger now intervenes.
The Facts: When Withdrawal Becomes Problematic
The factual matrix of the case, while ostensibly straightforward, raises questions of considerable doctrinal significance. In 2020, the owner of a multi-storey residential building in Berlin resolved to add two additional floors to the structure. She engaged an architect not merely to prepare the project documentation and supervise the construction works, but also to assist in the negotiation and conclusion of the necessary contracts with subcontractors. This model of professional intermediation — unremarkable in itself — would prove determinative for the interpretation of the consumer’s right of withdrawal.
Acting on behalf of his client, the architect selected Eisenberger Gerüstbau GmbH as the scaffolding contractor and prepared a draft contract, which he transmitted by email to both the consumer and the selected contractor. The draft contained no information whatsoever regarding the consumer’s right of withdrawal — an omission whose consequences would prove far-reaching. Eisenberger executed the contract without amendment and returned it to the consumer, who in turn sent back the signed copy by ordinary post — a procedural detail of some significance for the question whether the contract was concluded with the “exclusive” use of means of distance communication within the meaning of Article 2(7). Following the installation of the scaffolding, Eisenberger submitted a supplementary offer by email for two additional scaffolding structures, which the consumer accepted, again by email. The scaffolding was thereupon made available for use.
In December 2021 — notwithstanding that the construction works for which the scaffolding had been required were by then complete, and the scaffolding had been utilised throughout in accordance with its intended purpose — the consumer declared her withdrawal from the contract, demanded reimbursement of all sums paid, and refused further payments. Following the dismantling of the scaffolding at the consumer’s request, Eisenberger brought an action before the Landgericht Berlin (Regional Court, Berlin) for payment of the outstanding remuneration; the consumer counterclaimed for restitution of the amounts already paid. The court of first instance dismissed Eisenberger’s claim and upheld the counterclaim in its entirety. Eisenberger appealed to the Kammergericht (Higher Regional Court, Berlin).
The Preliminary References: A Cartography of Interpretive Challenges
The Kammergericht, confronted with this constellation of facts, formulated four questions for preliminary ruling that collectively map the most pressing interpretive challenges facing contemporary consumer contract law.
The first question goes to the core of the distance-contract definition: does a contract qualify as a distance contract within the meaning of Article 2(7) where the consumer was assisted, prior to or at the time of conclusion, by an independently commissioned professional intermediary? In other words, does the architect’s involvement as adviser and intermediary affect the legal characterisation of the contract — and, by extension, the consumer’s right of withdrawal?
The second question refines this inquiry by focusing on the specific functions performed by the consumer’s intermediary. Does the legal characterisation change where the intermediary took the initiative in establishing contact between the consumer and the service provider, or where the intermediary influenced key elements of the contract’s content — for example, by drafting the specifications or preparing the contractual instrument itself?
The third question addresses the legal status of supplementary agreements concluded after the principal contract. Where the principal contract does not qualify as a distance contract, may supplementary arrangements concluded exclusively by electronic means be treated as autonomous distance contracts subject to the withdrawal regime?
The fourth question is, however, the most consequential — both doctrinally and practically. It concerns the situation in which a consumer, notwithstanding the absence of proper pre-contractual information regarding the right of withdrawal, exercises that right after the trader has fully performed. The referring court formulated this question with notable precision, identifying four cumulative conditions whose satisfaction might render the consumer’s reliance on the exclusion of reimbursement contrary to good faith: (i) it cannot be established that the trader intentionally failed to provide the requisite information; (ii) the trader has provided a service that is non-returnable for factual or economic reasons; (iii) the consumer has permanently appropriated the benefit of the service or its inherent economic value; and (iv) the amount of the compensation claimed is not excessively high. May the consumer, in such circumstances, be required to make reasonable restitution for the value of services received, where a contrary result would constitute an abuse of right?
The Advocate General’s Opinion: Toward a New Equilibrium
Advocate General Biondi’s Opinion advances a novel interpretive framework that, if endorsed by the Court, could fundamentally recalibrate the relationship between consumer protection and contractual fairness under the Directive. On the first three questions, the Advocate General adopted a comparatively liberal posture, concluding — subject to verification by the referring court of the four cumulative conditions for a distance contract under Article 2(7) — that the architect’s assistance does not affect the legal characterisation of the contract as a distance contract. The consumer’s right of withdrawal remains intact even where the consumer availed herself of professional support in the negotiation and conclusion of the agreement. In reaching this conclusion, the Advocate General invoked the settled jurisprudence according to which a consumer remains the weaker party irrespective of whatever technical expertise she may possess — even a lawyer concluding a contract outside the scope of her professional activity retains consumer status (judgment of 3 September 2015, Case C‑110/14, Costea, paragraphs 26–27).
The pivotal contribution of the Opinion, however, lies in the response to the fourth question, where the Advocate General constructs his reasoning upon two doctrinal pillars.
The first pillar: the abuse-of-rights test derived from CJEU jurisprudence. The Advocate General invokes the well-established principle that EU law recognises a general prohibition against the fraudulent or abusive reliance on Union rules (judgment of 12 May 1998, Case C‑367/96, Kefalas, paragraph 20; judgment of 21 February 2006, Case C‑255/02, Halifax, paragraph 69). The demonstration of abuse requires the satisfaction of two elements — one objective, the other subjective. The objective element requires a showing that, despite formal compliance with the conditions prescribed by the relevant EU rules, the purpose of those rules has not been achieved. The subjective element requires proof of an intention to obtain an advantage from the EU rules by artificially creating the conditions for its attainment (judgment of 14 December 2000, Case C‑110/99, Emsland-Stärke, paragraphs 52–53; judgment of 13 March 2014, Case C‑155/13, SICES, paragraph 31). This bipartite methodology — which finds its functional equivalent in Polish law under the general clause of Article 5 of the Civil Code, and in German law under § 242 BGB (the obligation to perform in good faith) — constitutes the analytical framework upon which any defence against the abusive exercise of the consumer’s right of withdrawal would stand or fall.
The second pillar: the teleological imperative of Recital 4. The Advocate General reasons that permitting a consumer to withdraw from a contract following its complete performance and to be discharged entirely from any obligation to pay would produce a result disproportionate to the economic interests of the trader and irreconcilable with the Directive’s objective — as articulated in Recital 4 — of achieving the right balance between consumer protection and the competitiveness of enterprises. In support of this conclusion, the Advocate General draws upon the judgment of 3 September 2009 in Case C‑489/07, Messner, in which the Court held that the relevant provisions of the predecessor Directive 97/7/EC “do not prevent the consumer from being required to pay compensation for the use of the goods in the case where he has made use of those goods in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment,” provided that the effectiveness of the right of withdrawal is not thereby adversely affected — a matter for determination by the national court.
Of particular significance is the Advocate General’s express disagreement with the position of the European Commission, which had argued that because the withdrawal occurred within the twelve-month period prescribed by the Directive, no question of abuse could arise. The Advocate General dismissed this contention as “simplistic” (simpliste), reasoning that mere formal compliance with the withdrawal deadline cannot, without more, preclude a finding of abusive conduct. This open divergence from the Commission’s position is noteworthy: it signals that the Court possesses genuine decisional latitude on the question and that the Advocate General’s proposed framework may command the support of the bench.
The Dual Function of the Architect in the Abuse-of-Rights Analysis
The role of the architect warrants separate consideration, for it appears in two distinct analytical contexts within the Opinion. With respect to the first and second preliminary questions — concerning the classification of the contract as a distance contract — the Advocate General unequivocally affirms that the architect’s assistance does not deprive the consumer of her status, nor does it preclude the exercise of the right of withdrawal.
In the context of the fourth question, however — the assessment of potential abuse — the Advocate General assigns to the architect a materially different role. While acknowledging that the architect’s involvement does not affect consumer status, the Advocate General observes that it “may still play a role in the overall assessment” of whether abusive conduct has occurred. It is, the Advocate General notes, improbable that the architect was unaware of the consumer’s rights and obligations under the contract he himself had drafted, or that he was unable to inform the consumer accordingly. The practical implications of this observation are considerable: where a consumer has engaged a professional adviser who was in a position — and, arguably, under a duty — to inform her of the right of withdrawal, a court may take that circumstance into account in assessing the consumer’s good faith when she exercises the right of withdrawal following the full performance of the contract.
Implications for Commercial Practice
The Advocate General’s Opinion carries far-reaching consequences for commercial practice, particularly for traders providing services to consumers. First, it confirms that the mere fact that a consumer engages professional assistance in the negotiation and conclusion of a contract does not divest her of consumer status or affect the classification of the contract as a distance contract. The consumer’s right of withdrawal subsists irrespective of whether an architect, adviser, or intermediary participated in the contractual process.
At the same time, the Opinion introduces a measure of uncertainty regarding the hitherto absolute character of consumer protection in this domain. Traders who, in the wake of the DC judgment (C‑97/22), had been compelled to accept the risk of forfeiting their entire remuneration upon any failure to comply with pre-contractual information obligations may now, in defined circumstances, invoke a defence against manifestly abusive consumer conduct. This development, while equitable in principle, introduces an additional layer of complexity into the assessment of legal risk.
The implications are particularly acute for sectors in which the performance of services is inherently irreversible or in which reversal would entail disproportionate cost. Construction firms, renovation companies, and other service providers whose performance is consumed in the course of delivery may find themselves in a position to claim reasonable compensation for services rendered, notwithstanding a formal breach of information obligations — and the consequent extension of the withdrawal period — provided that they can demonstrate that the consumer’s conduct satisfies the requirements of the bipartite abuse-of-rights test.
Risks and Implementation Challenges
The framework proposed by the Advocate General is not, however, without significant risks and implementation challenges. The threshold difficulty lies in the inherently fact-intensive nature of the abuse inquiry: courts must evaluate, in each individual case, whether the consumer’s conduct satisfies both the objective and the subjective elements of the test. Such case-by-case adjudication, by its nature, may engender inconsistent jurisprudence and legal uncertainty — a burden that may fall disproportionately upon small and medium-sized enterprises litigating consumer disputes.
There exists, moreover, a paradox inherent in any “fairness exception” of this kind: it may attenuate the incentive for traders to comply scrupulously with their information obligations. If the failure to provide the requisite pre-contractual disclosures no longer automatically entails the forfeiture of all remuneration, a subset of traders may be tempted to neglect their compliance obligations, calculating that partial recovery will remain available in the event of a dispute.
There is also a risk that this approach may erode the consumer protection edifice from the demand side. Consumers who are aware that they may be required to compensate the trader for services received — even following a valid withdrawal — may be dissuaded from exercising their rights, resulting in a de facto diminution of the level of protection intended by the EU legislature. It should be noted, however, that the Advocate General himself identifies a limiting principle: the Messner judgment requires that the application of good faith and unjust enrichment principles must not impair the effectiveness and efficiency of the right of withdrawal itself.
The Broader Arc of EU Consumer Law
The Advocate General’s Opinion is situated within a broader trajectory in the evolution of EU consumer law — a trajectory characterised by a progressive departure from the mechanical application of protective provisions toward a more nuanced, circumstance-sensitive approach. As Advocate General Pitruzzella aptly observed in his Opinion in Case C‑570/21, the development of EU law and CJEU jurisprudence has moved “in the direction of greater consumer protection, but always in balance with other freedoms and, ultimately, with the efficient functioning of the single market, while leaving sufficient margins of flexibility in the concept so as to allow for the inclusion of all situations objectively requiring protection.”
This trajectory does not signify a diminution of consumer protection per se, but rather its rationalisation — an adaptation to the realities of a commercial environment in which the traditional dichotomy between consumer and trader has become increasingly fluid, and in which consumers routinely avail themselves of professional advice in their contractual dealings. In such an environment, the rigid application of withdrawal provisions may produce outcomes that are difficult to reconcile with fundamental principles of justice.
Practical Recommendations for Traders
In light of the Advocate General’s Opinion, traders operating in consumer-facing markets should, as a threshold matter, maintain the highest standards of compliance with the pre-contractual information obligations prescribed by Directive 2011/83/EU. The Opinion does not relieve traders of these obligations; it merely introduces a potential defence against manifest abuse in exceptional circumstances. The consumer’s right of withdrawal remains the rule; its abuse is the exception — an exception that the trader bears the burden of establishing through the satisfaction of both the objective and subjective elements of the test.
Simultaneously, traders should prepare for a legal environment in which the assessment of consumer claims will demand a more granular analysis of the totality of the circumstances. The systematic documentation of the scope and value of services rendered, and of the benefits derived by the consumer, may prove decisive in disputes arising from withdrawal following performance. It is advisable, in this regard, to maintain records addressing the four criteria identified by the referring court: the circumstances of the information failure (including the absence of deliberate intent); the non-returnable character of the performance; the consumer’s permanent appropriation of the service’s economic value; and the proportionality of the amount claimed.
Particular attention should be devoted to long-term contracts and those whose performance proceeds in stages. In such cases, the risk of belated withdrawal following partial or complete performance is especially acute, and ongoing legal counsel attuned to the specificities of the relevant sector may prove essential in safeguarding the trader’s interests in the event of a dispute over the validity and consequences of withdrawal.
In the Polish context, it bears noting that the functional equivalent of § 242 BGB — the duty to perform in good faith upon which the referring court’s fourth question rests — is Article 5 of the Civil Code (Kodeks cywilny), which provides that the exercise of a subjective right that would be contrary to its socio-economic purpose or to the principles of social coexistence (zasady współżycia społecznego) does not constitute a lawful exercise of that right and does not enjoy the protection of the law. Should the Court of Justice endorse the Advocate General’s framework, Polish courts would possess a robust doctrinal basis for applying Article 5 of the Civil Code to disputes involving the abusive exercise of the consumer’s right of withdrawal — subject, of course, to the satisfaction of both elements of the abuse-of-rights test.
Conclusion
The Opinion of Advocate General Biondi in Eisenberger Gerüstbau GmbH v. JK represents a deliberate attempt to recalibrate the equilibrium in EU consumer contract law — an equilibrium that accommodates not only the imperative of protecting the weaker party, but also the principles of proportionality, good faith, and contractual fairness. The Opinion’s significance lies in its explicit departure from the absolutist logic of the DC judgment (C‑97/22), in which the Court treated the forfeiture of all remuneration as the inescapable consequence of a failure to provide pre-contractual information on withdrawal rights. In its place, the Advocate General proposes a framework grounded in the general principles of EU law — the prohibition of abuse of rights and the requirement of good faith — that would permit national courts to award reasonable compensation where the consumer’s exercise of withdrawal, assessed in the totality of the circumstances, amounts to abusive conduct. The Advocate General’s candid rejection of the European Commission’s contrary position further underscores the seriousness of the doctrinal reorientation being proposed.
For practitioners and scholars alike, the implications are considerable. The traditional paradigm — in which the mechanical application of withdrawal provisions could operate with little regard for the equities of the individual case — may yield to a more flexible regime in which the specific circumstances of each dispute, and the conduct of both parties, assume decisive importance.
Whatever the ultimate disposition by the Court of Justice, the Advocate General’s Opinion already constitutes a landmark contribution to the ongoing debate over the proper relationship between consumer protection and commercial fairness in the European legal order. The evolution it portends — however uncertain in its ultimate contours — may ultimately conduce to a more balanced and sustainable system: one in which the consumer’s right of withdrawal operates in harmony with the legitimate interests of those who provide the goods and services upon which modern commerce depends.
Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.
There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.
One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).
Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.
He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.
