Judges M Safjan (Rapporteur), N Jääskinen
Advocate General H Saugmandsgaard Øe
The defendant trader, a German company, operated a dating website in which it offered either a free, basic membership with an extremely limited ability to contact other users, and a paid “premium” membership which enabled users to contact any other premium member, namely any one of over 186,000 users across Germany. Premium members received a “personality report” which was created by generating the results of a personality test that had been developed by a psychologist. The claimant consumer concluded a contract with the trader for a 12-month “premium” membership for €523.95, which was more than twice as high as that which the trader had charged other customers for a contract for the same term concluded in the same year. The trader informed the consumer of her right of withdrawal but, before the expiry of the cooling-off period, she confirmed that she wished the service to commence. However, four days later, she withdrew from the contract and the trader charged her €392.96 for the service used. By an action brought before a local German court, the consumer claimed the repayment of all the money she had paid. The court was unsure how to calculate, within the meaning of article 14(3) of Parliament and Council Directive 2011/83/EU, the part payment of the “total price” “in proportion to what has been provided”, that a service provider was entitled to in a situation in which a consumer had explicitly requested the provider to start performing a service during the cooling-off period. If the total price was “excessive”, the proportionate amount was calculated on the basis of the “market value” of what had been provided which was, pursuant to recital (50), defined by comparing the price of an equivalent service performed by other traders at the time of the conclusion of the contract. Article 16(m) of the Directive specifically excluded the right of withdrawal from distance or off-premises contracts for the supply of digital content, not supplied on a tangible medium. Accordingly, the court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling, the questions in essence: (i) how to calculate the proportionate amount to be paid by the consumer to the trader under article 14(3); (ii) which criteria should be applied when assessing whether the total price was excessive within the meaning of article 14(3) and (iii) the relevance of the fact that one of the services covered by the contract, namely the provision of a “personality report”, concerned the supply of digital content which was not supplied on a tangible medium within the meaning of article 16(m).
On the reference—
Held, (1) the proportionate amount that had to be paid by the consumer in accordance with article 14(3) of Parliament and Council Directive 2011/83/EU should be calculated by taking into account all the services covered by the contract, namely the principal service and the ancillary services necessary to ensure the performance of the principal service. Where the parties to the contract agreed a price for the services provided, that price corresponded to the value of all those services. It was only where the contract expressly provided that one or more of the services were to be provided in full from the beginning of the performance of the contract and separately, for a price which had to be paid separately, that the full price for such a service should be taken into account in the calculation of the amount owed to the trader under article 14(3). The contract in issue did not provide for a separate price for any service that could be regarded as separable from the principal service provided for in that contract. Accordingly, in determining the proportionate amount to be paid by the consumer to the trader where that consumer had expressly requested that the performance of the contract began during the withdrawal period and withdrew from that contract, the price agreed in the contract for the full coverage of the contract should be taken into account and the amount calculated pro rata temporis (judgment, paras 28–32, operative part, para 1).
(2) Since article 14(3) of Directive 2011/83 should be interpreted in the light of recital (50), all the circumstances relating to the market value of the service provided were relevant for the purpose of assessing whether the total price was excessive, namely the comparison both with the price charged by the trader to other consumers under the same conditions and with the price of an equivalent service provided by other traders (judgment, paras 35–37, operative part, para 2).
(3) Article 16(m) of Directive 2011/83, which constituted an exception to the right of withdrawal, restricted the rights granted for consumer protection, and had to be interpreted strictly. Therefore, a service, such as that provided by the dating website in issue, that allowed the consumer to create, process, store or access data in digital form and allowed the sharing of, or any other interaction with, data in digital form, uploaded or created by the consumer or other users of that service, was not a supply of “digital content” within the meaning of article 16(m). Similarly, the generation of a personality report by a dating website did not did not constitute the supply of “digital content” and, therefore, did not fall within the exception in article 16(m) (judgment, paras 43–46, operative part, para 3).
T Meier-Bading for the consumer.
C Rohnke for the trader.
P Cottin and S Baeyens, agents, for the Belgian Government.
B-R Killmann and C Valero, agents, for the European Commission.