Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 14 November 2023 (1)

Case C‑400/22

VT,

UR

v

Conny GmbH

(Request for a preliminary ruling from the Landgericht Berlin (Regional Court, Berlin, Germany))

(Request for a preliminary ruling - Consumer protection - Directive 2011/83/EU - Article 8(2) - Pre-contractual information requirements - Formal requirements for distance contracts - Contracts concluded by electronic means - Order placed by activating a button on a website - Obligation on the trader to label that button with the words ‘order with obligation to pay’ - Conditional payment obligation)

1.        At the time of the conclusion of a distance contract between a consumer and a trader, must any payment order conditional on the occurrence of an event outside the consumer’s sphere of influence be subject to the same formal requirements as those laid down by EU law in the case of an immediate and unconditional payment order?

I.      Legal background

A.      European Union law

2.        Recitals 4, 5, 7 and 39 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64) state:

‘(4)      In accordance with Article 26(2) TFEU, the internal market is to comprise an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The harmonisation of certain aspects of consumer distance and off-premises contracts is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity.

(5)      … Therefore the full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and a better functioning of the business-to-consumer internal market.

…

(7)      Full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders. Both consumers and traders should be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Union. The effect of such harmonisation should be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. Those barriers can only be eliminated by establishing uniform rules at Union level. Furthermore consumers should enjoy a high common level of protection across the Union.

…

(39)      It is important to ensure for distance contracts concluded through websites that the consumer is able to fully read and understand the main elements of the contract before placing his order. To that end, provision should be made in this Directive for those elements to be displayed in the close vicinity of the confirmation requested for placing the order. It is also important to ensure that, in such situations, the consumer is able to determine the moment at which he assumes the obligation to pay the trader. Therefore, the consumer’s attention should specifically be drawn, through an unambiguous formulation, to the fact that placing the order entails the obligation to pay the trader.’

3.        In accordance with Article 1 of Directive 2011/83, entitled ‘Subject matter’:

‘The purpose of this Directive is, through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts concluded between consumers and traders’.

4.        Article 2 of that directive, entitled ‘Definitions’, provides:

‘For the purpose of this Directive, the following definitions shall apply:

…

(7) “distance contract” means any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

…’.

5.        Article 3 of the same directive, entitled ‘Scope’, provides:

‘1.      This Directive shall apply, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer.

…

5.      This Directive shall not affect national general contract law such as the rules on the validity, formation or effect of a contract, in so far as general contract law aspects are not regulated in this Directive.’

6.        Article 6 of Directive 2011/83, entitled ‘Information requirements for distance and off-premises contracts’, provides:

‘1.      Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:

…’.

7.        Article 8 of that directive, entitled ‘Formal requirements for distance contracts’, provides:

‘…

2.      If a distance contract to be concluded by electronic means places the consumer under an obligation to pay, the trader shall make the consumer aware in a clear and prominent manner, and directly before the consumer places his order, of the information provided for in points (a), (e), (o) and (p) of Article 6(1).

The trader shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. If placing an order entails activating a button or a similar function, the button or similar function shall be labelled in an easily legible manner only with the words “order with obligation to pay” or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader. If the trader has not complied with this subparagraph, the consumer shall not be bound by the contract or order.

…’.

B.      German law

8.        Paragraph 312j(3) and (4) of the Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’), entitled ‘Specific obligations vis-à-vis consumers in e-commerce’ provides:

‘(3)      In the case of [an e-commerce consumer] contract [for a service provided by the trader for consideration], the trader must configure the ordering situation in such a way that the consumer, when placing his or her order, explicitly acknowledges that he or she assumes an obligation to pay. Where the order is placed by means of a button, the obligation of the trader referred to in the first sentence is fulfilled only if the button is labelled in an easily legible manner only with the words “order with obligation to pay” or a corresponding unambiguous formulation.

(4)      [E-commerce consumer] contracts [for a service provided by the trader for consideration] shall be formed only if the trader fulfils his or her obligation under subparagraph 3.’

II.    Facts, procedure and question referred for a preliminary ruling

9.        The applicant in the main proceedings (Conny; ‘the applicant’), a limited liability company acting as assignee of the rights of the tenant of an apartment (‘the tenant’), claims that the landlord of that property (VT and UR; ‘the defendants’) has exceeded the maximum limit on the amount of rent, as provided in Paragraph 556d of the BGB.

10.      In particular, the applicant offers tenants of apartments, via a website which it has set up, the possibility of instructing it to assert the rights linked to exceeding the maximum amount of rent with regard to landlords, by clicking on a button labelled ‘continue’, ‘seek a rent reduction’, or ‘recover rent ceiling saving’. Once the registration has been made on the website, the tenants must then confirm that they wish to instruct the applicant with the task by signing a form to that effect.

11.      In the event that the applicant’s attempts to assert the rights of the tenants are successful and, consequently, the sums exceeding the ceiling provided for can be recovered, the tenants will have to pay by way of remuneration: (i) an amount equal to one third (33.33%) of the amount of annual rent saved (‘the commission’) and, as soon as formal notice is sent to the landlord (ii) the amount to which a lawyer would be entitled under the provisions of the Law on the remuneration of lawyers.

12.      In the present case, the tenant has been renting, since 15 November 2018, an apartment in Berlin owned by the defendants. The agreed monthly rent is higher than the ceiling laid down by the applicable national provision (Paragraph 556d of the BGB).

13.      The tenant - by registering on the website set up by the applicant and signing the form provided for that purpose - instructed the applicant to assert his rights, arising from exceeding the maximum rent, against the defendants. The agency agreement did not, however, contain any indication in relation to the obligation to pay on the part of the tenant.

14.      By letter of 21 January 2020, the applicant claimed that the defendants had infringed the provisions on the limitation of rent levels (Paragraph 556dl of the BGB), and made a number of requests for information and reimbursement.

15.      The action was successful before the Amtsgericht Berlin Mitte (Local Court, Central Berlin, Germany), which found that the rent demanded exceeded the maximum permissible rent level to the extent claimed by the applicant.

16.      In the proceedings before the Landgericht Berlin (Regional Court, Berlin, Germany), the defendants argued, inter alia, that the applicant was not entitled to assert the rights of the tenant, since the tasks had been entrusted to it on the basis of a contract which was void. That nullity resulted, more specifically, from the fact that the procedure for concluding the agency agreement between the applicant and the tenant did not comply with the requirements of Paragraph 312j(3) and (4) of the BGB, which transposes into national law the second subparagraph of Article 8(2) of Directive 2011/83, since the button on the applicant’s website, on which the tenant had clicked in order to conclude the contract, should have been labelled with the words ‘order with obligation to pay’ or a similar formulation highlighting the existence of the contractual obligation to pay.

17.      In that context, the Landgericht Berlin (Regional Court, Berlin) decided to make a reference to the Court of Justice for a preliminary ruling since it had doubts as to the applicability to the present case of the second subparagraph of Article 8(2) of Directive 2011/83, as transposed into German law by Paragraph 312j(3) and (4) of the BGB, under which the button for finalising the order on the applicant’s website must contain an explicit reference to the assumption on the part of the tenant of the payment obligation. In that regard, the referring court notes that that obligation does not arise solely as a result of the order placed by the tenant on the applicant’s website, but requires the fulfilment of subsequent conditions.

18.      The Landgericht Berlin (Regional Court, Berlin) notes, moreover, that the national provision transposing the second subparagraph of Article 8(2) of Directive 2011/83 into national law - that is to say Paragraph 312j(3) and (4) of the BGB - is not interpreted uniformly by the national courts. (2)

19.      In those circumstances the Landgericht Berlin (Regional Court, Berlin) stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘Is it compatible with the second subparagraph of Article 8(2) of Directive 2011/83/EU if a national provision (in the present case, Paragraph 312j(3) and (4) of the BGB in the version in force from 13 June 2014 to 27 May 2022) is to be interpreted as meaning that its scope, like that of the second subparagraph of Article 8(2) of Directive 2011/83/EU, also covers a case in which the consumer is not unconditionally obliged to pay the trader at the time of the conclusion of the contract by electronic means, but only under certain further conditions - for example, exclusively in the event that a legal action which the trader has been instructed to bring is subsequently successful, or in the event that formal notice is subsequently given to a third party?’

III. Legal analysis

20.      The referring court asks, in essence, whether the second subparagraph of Article 8(2) of Directive 2011/83 must be interpreted as meaning that a situation in which, at the time of the conclusion of a distance contract by electronic means, that contract does not automatically entail an obligation to pay on the part of the consumer, but that obligation is subject to the fulfilment of any certain subsequent conditions (in the present case, if recovery of the claim by the intermediary is successful), falls within the scope of that provision.

21.      In particular, the referring court asks whether, under its national law (Paragraph 312j(3) and (4) of the BGB), a contract concluded at a distance by electronic means by a consumer may be regarded as valid, in accordance with the second subparagraph of Article 8(2) of Directive 2011/83, where, at the time of its conclusion, the trader does not expressly refer to the assumption on the part of the consumer of the obligation to pay remuneration for the contractual performance in question.

22.      In the event that that contract is invalid, it will also be necessary to ascertain whether the national provision at issue (Paragraph 312j(3) and (4) of the BGB), in accordance with the second subparagraph of Article 8(2) of Directive 2011/83, allows the court to maintain the effects of the contract where the consumer objects to the disapplication of the disputed clause.

23.      The factual situation is, therefore, quite particular: the tenant of a property signs at a distance a contract by which he or she confers on an intermediary trader a mandate to recover a claim consisting of a higher amount paid to the landlord by way of rent. In the course of the proceedings brought by the intermediary against the landlord for the recovery of the sums, the landlord asserts nullity of the contract between the intermediary and the tenant because of the infringement of a provision of the national law implementing Directive 2011/83. That provision requires that, when the distance contract is signed, the button by which the agreement is finalised must be labelled unequivocally with the words that the consumer is assuming an obligation to pay. However, the present case is characterised by the circumstance that the obligation to pay assumed by the consumer is possible because it is conditional on the actual recovery of the sums due by the intermediary.

24.      Apart from the issue of admissibility, which I will briefly discuss in the following section, the legal issues to be examined in order to provide a useful answer to the request for a preliminary ruling are: (a) whether the ‘conditional payment’ case falls within the second subparagraph of Article 8(2) of Directive 2011/83; (b) if it does so, the effects of the infringement of the obligation laid down therein on the signed contract, with particular reference to the wishes of the consumer and the standing of a third party to rely on the possible invalidity.

Admissibility

25.      It should be noted, first of all, that the applicant in the main proceedings challenges the admissibility of the question referred for a preliminary ruling on the ground that a third party, the landlord in the present case, cannot validly rely on the invalidity of the legal relationship concluded between the assignor (the tenant) and the assignee. It follows that the interpretation of Directive 2011/83 sought by the national court is, according to the applicant, irrelevant to the resolution of the dispute before it.

26.      However, those arguments cannot be accepted, since, as is apparent from the request for a preliminary ruling and the explanations provided by the referring court, the interpretation of EU law sought is linked to the subject matter of the dispute in the main proceedings. As is well known, it is settled case-law of the Court that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it or where the problem is hypothetical. (3)

27.      In the present case, the assessment of the national court, also confirmed by the abovementioned clarifications requested, appears to support the conclusion that the question is relevant, it being understood that it will then be for the national court to apply the principles set out in the main proceedings.

28.      The circumstance which emerged at the hearing that the tenant has expressed his wish to remain bound by the contract, if confirmed, is certainly relevant to the resolution of the dispute, also in the light of the arguments set out below, but, in my view, has no bearing on the admissibility of the question, since the Court must, in that regard, rely on the file before it and on the arguments put forward by the national court in its request for a preliminary ruling. In any event, the fact that, in a specific situation, an individual decides not to rely on the nullity provided for by the rule cannot affect the assessments as to whether the conditional payment obligation is to be regarded as an unqualified obligation to pay.

On the merits

A.      Formal requirements for distance contracts and ‘conditional’ payment

29.      The main objective of Directive 2011/83, as is apparent from Article 1 thereof, read in the light of recitals 4, 5 and 7 thereof, is to contribute to the proper functioning of the internal market by ensuring a high level of protection of consumer rights in transactions with traders. The protection of consumers within EU policies is set out in Article 169 TFEU and in Article 38 of the Charter of Fundamental Rights of the European Union. (4)

30.      That directive, as is apparent from Article 3 thereof, includes within its scope contracts between traders and consumers concluded at a distance, the definition of which is expressly laid down in Article 2(7) thereof.

31.      An agency agreement concluded between a tenant of a property (a consumer) and a trader by means of a dedicated website, of the type at issue in the main proceedings, can certainly be classified as a distance contract falling within the scope of Directive 2011/83.

32.      In order to protect consumer safety in transactions with traders, Article 6 requires the trader, for the valid conclusion of distance contracts, to provide the consumer with a series of essential information in a clear and comprehensible manner.

33.      In that regard, Article 8, read in the light of recital 39, refers, moreover, to a number of formal requirements to be complied with.

34.      In particular, Article 8(2) includes, inter alia, the obligation for the trader to communicate to the consumer in a clear and prominent manner, before the latter signs the order, that the conclusion of the contract implies an obligation to pay.

35.      Moreover, where placing an order requires activating a button or activating a similar function, the button or similar function must be labelled ‘in an easily legible manner only with the words “order with obligation to pay” or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader’. On the other hand, if the trader has not complied with those formalities, the consumer will not be bound by the contract or order.

36.      Those provisions, as interpreted by the Court, (5) highlight the need for the trader, when concluding a distance contract by electronic means, to indicate clearly to the consumer the obligation to pay for the contractual performance. It follows that the obligation to provide such precise indications is linked to the acceptance of the contractual obligation.

37.      It is necessary to assess the nature and characteristics of contracts concluded at a distance by electronic means which contain a conditional payment obligation - of the same type as that at issue in the main proceedings - in order to determine whether the indications contained in those contracts are such as to enable the consumer to acknowledge explicitly when signing the contract, in accordance with Article 8 of Directive 2011/83, the payment obligation borne by him or her.

38.      The textual interpretation, the systematic interpretation and the objectives of Directive 2011/83 lead, in my view, to the same solution: the formal requirements imposed by the second subparagraph of Article 8(2) of that directive also apply where the payment which the consumer undertakes to pay is subject to the fulfilment of a specific condition outside the consumer’s sphere of influence.

39.      As regards the wording of Directive 2011/83, the expression used according to which the ‘trader shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay’ makes no distinction between certain and ‘conditional’ payments.

40.      As the European Commission rightly points out, if the EU legislature had wished to limit the obligation to provide information solely to the case of an unconditional payment obligation, it would have done so explicitly. That was not done. (6) The conclusion of a contract by electronic means already ‘implies’ in itself an obligation to pay, even where that obligation does not necessarily arise, but is only possible. The condition on which the actual implementation of the payment obligation depends is not within the consumer’s sphere of influence and, subsequently, on the conclusion of the contract, there will be no new moment at which the consumer will be called upon to consent to the payment itself.

41.      An average consumer, without in-depth technical and legal knowledge, is not able to understand whether or not a contract is subject to conditions. Thus, the rights of a consumer who concludes a distance contract by electronic means, as is the case in the main proceedings, can be said to be adequately protected only if the latter is expressly informed, at the time when he or she clicks on the button to sign the contract, of the fact that he or she is assuming a payment obligation without a further manifestation of his or her wishes being required.

42.      As regards the distinctions put forward by the applicant in the main proceedings that this is not a genuine ‘payment of remuneration’ because of the particular nature of the situation, it is sufficient to observe that the method of remuneration as a success fee is quite common in the world of traders and constitutes a genuine method of remuneration for the performance provided. It is the trader which unilaterally chooses to obtain remuneration only in the event of success in the professional performance offered and the consumer plays no role in that. The reasons for this method of remuneration may be the most diverse, but are mostly of a purely commercial nature, in order to encourage the consumer to sign the contract and not to act on his or her own behalf. However, that has no bearing, in my view, on the classification of the success fee as pay or remuneration.

43.      The systematic interpretation and the objectives of Directive 2011/83 support the same view. As the Court made clear in the judgment in Fuhrmann-2, (7) the moment of acceptance is a decisive moment for providing the information to the consumer. The Court pointed out in that regard that the completion of an ordering process entailing a consumer’s obligation to pay is a fundamental step, in that it implies that the consumer has agreed to be bound not only by the distance contract but also by the obligation to pay. Consequently, it would effectively undermine that objective if, by activating a button or similar function, the consumer were required to infer from the circumstances of that process that he or she is giving a binding undertaking to pay, where the formulation of that button or similar function is not such as to enable the consumer to identify such consequences with absolute certainty.

44.      The contractual relationship which is the legal condition of the obligation to pay arises, rather, at the moment at which the consumer manifests his or her will, that is to say, when he or she clicks on the button to sign the order.

45.      I concur with the Commission (8) that even an interpretation based on the effectiveness of the provision leads to the same result: the obligation to comply with the formal requirements laid down in Article 8(3) of Directive 2011/83 even in the case of ‘conditional’ payment is the only way of ensuring sufficient information and safety for consumers in their commercial relations with traders. In many cases, the consumer’s obligation to pay per se depends on subsequent events over which he or she has no control and to exclude all such cases from the scope of the information requirements would unacceptably undermine the scope of protection established by that directive.

46.      The applicant submits that there is a risk that a solution such as that proposed would create ambiguity for the consumer because the mere possibility of an obligation to pay, which is subject to the condition of recovery of the sums unduly paid, is unclear. I consider that, in the light of the objectives of consumer protection pursued by Directive 2011/83, clarification of the actual scope of the obligation may be provided in the contractual conditions presented to the consumer before the acceptance of the obligation to pay. The opposite solution, that is to say the presentation in the contractual conditions of the assumption of an obligation to pay (albeit conditional) without any explicit reference at the time of the conclusion of the contract, would frustrate the objectives of that directive.

47.      Next, contrary to what the applicant appears to argue, it should be added that, having regard to the objective of Directive 2011/83 of ensuring a high level of consumer protection, there is no need of the undertaking against which to weigh that objective. In other words, it is unclear what additional costs or harm the undertaking would suffer by adapting the button to the obligations laid down in that directive. (9)

48.      The referring court then raises the question of whether, in the case of conditional payment obligations, the text of the button itself may be extended to state that the obligation to pay arises only when certain conditions are satisfied. On this point too, I concur with the Commission (10) that the unambiguous formulation of the second subparagraph of Article 8(2) of Directive 2011/83 precludes such an extension of the text on the button. It states that the button must contain in an easily legible manner only the words ‘order with obligation to pay’ or a corresponding formulation. This is in line with the legislature’s intention to inform the consumer, at the time of the conclusion of the contract, by indicating his or her obligation to pay in a clear and unambiguous manner, and to add further information to the button could undermine clarity.

B.      Effects of infringement of the formal requirements on the validity of the contract: will of the consumer and standing of third parties

49.      As the Commission rightly pointed out in its observations, (11) in accordance with Article 3(5) of Directive 2011/83, the directive is not to affect national contract law such as the provisions relating to the validity, formation or effects of a contract, in so far as those aspects are not expressly regulated in that directive.

50.      In the second subparagraph of Article 8(2), as regards the requirement to indicate clearly the obligation to pay when the order is placed, Directive 2011/83 merely establishes that if the trader has not complied with the requirements laid down therein, ‘the consumer shall not be bound by the contract or order’.

51.      However, in the context of the present proceedings, the nullity of the contract between the trader and the consumer is not relied on by the consumer (the tenant) but by a third party (the landlord) which clearly has an interest in the annulment of the contract in so far as it would remove the claim brought against it by the trader.

52.      As is apparent from the settled case-law of the Court, (12) unfair terms must not be applied, unless the consumer objects. Thus, where the consumer expresses his or her consent to the unfair terms being retained, the system of protection against those terms does not apply. That would lead to distortive effects which are unrelated to the spirit and purpose of Directive 2011/83, in so far as the aspects of protecting the individual interest of the consumer are identified as having absolute priority.

53.      The scope of Article 8 in so far as it provides that the consumer will not be bound by the order is, therefore, not unconditional, but, following what the Court held in the judgments cited above, is limited by the will of the consumer.

54.      This means, in the present case, that the determination of the invalidity and the subsequent annulment of the term at issue and, in the event of the contract as a whole, between the consumer and the trader is left to the will of the consumer, for whose protection the invalidity of the term is specifically designed.

55.      That means, in my view, in the absence of provisions to the contrary in national law (by reason of the principle of procedural autonomy of the Member States), that a third party may legitimately rely on the invalidity of a term in a contract concluded between a trader and a consumer where it has an interest therein because it was invoked on the basis of that contract. However, the court will have to assess whether the interest of the third party and that of the consumer coincide (or, in any event, those of the third party may support consumer protection), or whether they diverge. In the second case, because the invalidity provided for in the consumer protection directives may be attributed to the category of ‘protective nullity’, irrespective of the exact classification under national law, the court will have to take its decision in accordance with the wishes of the consumer. Where the consumer clearly expresses his or her wish to maintain the effects of the term and the contract, the consequence can only be the rejection of the application for annulment by the third party. (13)

56.      If national law does not prohibit it, I consider that a third party is entitled to rely on the possible invalidity of a term in a contract concluded between a consumer or a trader if it has an interest, but, since the invalidity provided for in Article 8 is ‘protective’, the consumer will always have the last word on whether or not he or she wishes to benefit from the invalidity or, by subsequently expressing his or her wish, to validate the effects of an invalid term (relative nullity). Therefore, it cannot be accepted that the third party can invalidate a term in a contract between a consumer and a trader on the ground that that term is vitiated against the will and interest of the consumer, who is subject to the protection of the legislative measure.

57.      The last question, concerning the effects of the infringement, is that relating to the differences in wording between the national provision (Paragraph 312j(3) and (4) of the BGB) and Article 8(3) of Directive 2011/83.

58.      The wording of the national rule which implemented Directive 2011/83 provides, in essence, that the contract may be regarded as formed only if the trader complies with the obligations laid down therein. There is no doubt that the difference in meaning compared to the wording of that directive is not irrelevant, since there is no reference to the will of the consumer. It may be inferred from this that, under national law, the invalidity of the contract, in the event of infringement of the formal requirements laid down, is absolute.

59.      It is for the national court to ascertain whether it is possible to interpret the national law in conformity with EU law, applying the settled case-law of the Court. The principle that national law must be interpreted in conformity with EU law requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by it, with a view to ensuring that the directive in question is fully effective and to achieving an outcome consistent with the objective pursued by it. That requirement to interpret national law in conformity with EU law specifically entails the obligation for national courts to change established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive. Consequently, a national court cannot validly claim that it is impossible for it to interpret a provision of national law in a manner that is consistent with EU law merely because that provision has consistently been interpreted in a manner that is incompatible with EU law. (14) The obligation to interpret national law in a manner consonant with EU law has certain limits, however, and cannot, in particular, serve as a basis for an interpretation of national law contra legem. (15)

60.      The national court must therefore, in the present case, take into consideration the whole body of domestic law, including the principle of good faith, in order to determine whether an interpretation of national law in conformity with the wording and spirit of Directive 2011/83 is possible.

61.      In particular, in the present case, if the tenant’s wish to remain bound by the order placed on the applicant’s website is apparent, the national court could interpret Paragraph 312j(3) and (4) as not precluding the application of the unfair term, thereby maintaining the effects of the contractual relationship between the applicant and the tenant at issue in the main proceedings. (16)

C.      Conclusions

62.      On the basis of all of the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling as follows:

The second subparagraph of Article 8(2) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council,

must be interpreted as meaning that, in the context of an order for the conclusion of a distance contract by electronic means entailing the activation of a button or a similar function, the wording on that button must meet the requirements of that provision even where the consumer is subject, at the time of the conclusion of the contract, to an obligation to pay which depends on the occurrence of a future event outside the consumer’s sphere of influence. That is so under the condition that there is no later moment at which the consumer can express his or her consent to the payment.

1      Original language: Italian.

2      On the one hand, the Bundesgerichtshof (Federal Court of Justice, Germany) considers that the protective purpose of Paragraph 312j(3) and (4) of the BGB is not affected where, in the context of a distance contract: (a) the consumer requests the recovery of a potentially already existing claim; (b) the remuneration is payable to the trader only under certain conditions, that is to say, only in the event of success; and (c) the remuneration consists solely of the trader’s involvement in the realisation of the claim (see judgments of 19 January 2022, VIII ZR 123/21, DE:BGH:2022:190122UVIIIZR123.21.0, paragraph 55, and 30 March 2022, VIII ZR 358/20, DE:BGH:2022:300322UVIIIZR358.20.0, paragraph 58). On the basis of that interpretation, the contract concluded between the applicant and the tenant in the present case would be regarded as valid. On the other hand, the Federal Court of Justice expressly excluded a restrictive interpretation on the basis of the protective purpose of the same provisions of the BGB (see judgment of 19 January 2022, VIII ZR 122/21, DE:BGH:2022:190122UVIIIZR122.21.0, paragraph 52), which would imply the nullity of the distance contract at issue.

3      Judgments of 24 November 2020, Openbaar Ministerie (Forgery of documents) (C‑510/19, EU:C:2020:953, paragraph 26 and the case-law cited), and of 24 February 2022, Tiketa (C‑536/20, EU:C:2022:112, paragraph 39 and the case-law cited).

4      See, to that effect, judgment of 10 July 2019, Amazon EU (C‑649/17, EU:C:2019:576, paragraph 39), and judgment of 7 April 2022, Fuhrmann-2 (C‑249/21, EU:C:2022:269, paragraph 21).

5      See, in particular, the recent guidance on the interpretation of the second subparagraph of Article 8(2) of Directive 2011/83 provided by the Court in judgment of 7 April 2022, Fuhrmann-2 (C‑249/21, EU:C:2022:269).

6      Written observations of the Commission, paragraph 16.

7      See judgment of 7 April 2022, Fuhrmann-2 (C‑249/21, EU:C:2022:269, paragraph 30).

8      Written observations of the Commission, paragraph 21.

9      See judgment of 7 April 2022, Fuhrmann-2 (C‑249/21, EU:C:2022:269, paragraph 31), according to which, although, in interpreting the provisions of Directive 2011/83, it is necessary to ensure, as is stated in recital 4 of that directive, the right balance between a high level of consumer protection and the competitiveness of undertakings, while respecting the undertaking’s freedom to conduct a business, it must be held that such a balancing exercise is not relevant in this case, given that the formulation or alteration of words on an electronic ordering button or function does not entail a significant burden that might harm the competitiveness of the traders concerned or their freedom to conduct a business.

10      Written observations of the Commission, paragraph 24.

11      Written observations of the Commission, paragraph 27.

12      See, to that effect, judgments of 4 June 2009, Pannon GSM (C‑243/08, EU:C:2009:350); of 17 December 2009, Martín Martín (C‑227/08, EU:C:2009:792); and of 3 October 2019, Dziubak (C‑260/18, EU:C:2019:819). See also Annarita Freda, ‘Riflessioni sulle c.d. nullità di protezione sul potere-dovere di rilevazione officiosa’ [‘Reflections on the powers and duties to raise so-called protective nullity ex officio’], Ricerche Giuridiche, 2013, II, p. 583; Stefano Milanesi, ‘Le pronunce Pannon ed Eva Martin Martin sulla rilevabilità d’ufficio delle nullità di protezione’ [‘Rulings in Pannon and Eva Martin on raising protective nullity ex officio’], Giurisprudenza Commerciale, 2010, II, p. 801; Stefano Pagliantini, ‘La nullità di protezione tra rilevabilità d’ufficio e convalida’ [‘Protective nullity: between raising ex officio and validation’], Persona e Mercato, 2009, I, p. 26; and Rosalba Alessi, ‘Nullità di protezione e poteri del giudice tra Corte di Giustizia e sezioni unite della Cassazione’ [‘Protective nullity and powers of the court: between the Court of Justice and Combined Chambers of the Supreme Court of Cassation, Italy’], Europa e Diritto Privato, 2014, IV, p. 1173.

13      As the applicant noted in its replies at the hearing on 27 September 2023, the tenant allegedly confirmed that he wished to maintain the contract in force despite the unfair term. In particular, following the doubts expressed by the referring court as to the validity of the clause at issue, the applicant allegedly contacted the tenant, expressly asking him whether he nevertheless wished to conclude the contract and the tenant replied in the affirmative.

14      See judgment of 6 November 2018, Max-Planck-Gesellschaft zur Förderung der Wissenschaften (C‑684/16, EU:C:2018:874, paragraphs 59 and 60).

15      See judgment of 6 October 2021, Sumal (C‑882/19, EU:C:2021:800, paragraph 72 and the case-law cited).

16      A similar solution was adopted by the Corte di Cassazione, Sezioni Unite (Combined Chambers of the Court of Cassation, Italy), in judgment No 28314 of 4 November 2019. In that regard, see Tommaso Febbrajo, ‘Uso selettivo della nullità di protezione tra buona fede e principi rimediali di effettività, proporzionalità e dissuasività’ [‘Selective use of protective nullity: between good faith and principles of effectiveness, proportionality and deterrence in remedies’], Persona e Mercato, 2021, II, p. 345; Giuseppe Vettori, ‘Nullità selettive e riequilibrio effettivo. L’evoluzione della buona fede’ [‘Selective nullity and effective rebalancing: the development of good faith’], Persona e Mercato, 2019, IV, p. 21; and Chiara Sartoris, ‘La sentenza delle seziono unite sulla nullità selettiva: tra protezione e buona fede’ [‘The judgment of the Combined Chambers [of the Court of Cassation, Italy] on selective nullity: between protection and good faith’], Persona e Mercato, 2019, IV, p. 69.

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