In the case of consumer contracts concluded at a distance (e.g. online) or off-premises, consumers normally have a right of withdrawal of 14 days. A customer of a furniture company invoked this right. She had previously ordered a fitted kitchen at a commercial trade fair and ordered individual customizations. However, she withdrew from the contract within 14 days.
ECJ confirms: No exceptions for customer specifications
The furniture company did not want to accept this. According to Section 312g (2) No. 1 BGB, the right of withdrawal does not apply to goods that are “tailored to the personal needs of the consumer”. The case therefore ended up before the Potsdam District Court. The court then referred questions of interpretation on the right of withdrawal to the ECJ. For example, the district court wanted to know whether the exception also applies if production has not even begun or if changes can be easily reversed.
The ECJ has now confirmed in its ruling that such circumstances are irrelevant (ruling of October 21, 2020, ref.: C-529/19). The aim of EU law is to ensure that all parties involved have the greatest possible legal certainty. However, because customers usually do not even know whether the implementation of their wishes has already begun, this cannot be relevant. In any case, entrepreneurs who start production as quickly as possible would have the advantage of being able to bring the right of withdrawal to an early end.
Exhibition stands can be business premises
Incidentally, the ECJ judges also note that in this specific case there are already doubts as to whether there was a consumer contract outside of business premises at all. This is because a commercial trade fair stand could also be considered a business premises of a company. Only if the contract had been concluded somewhere at the trade fair, but not at the trader’s stand, would the EU Directive be applicable at all.
The decision in this individual case must now be made by the Potsdam District Court. However, the ECJ’s requirements are clear and also increase legal certainty for businesses and consumers alike beyond the individual case.
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Do I have a right of withdrawal when I order goods online in Germany?
For consumer contracts concluded at a distance or off-premises, consumers generally have a 14-day right of withdrawal (§ 312g Abs. 1, § 355 BGB). Within this period the contract can be revoked without giving reasons.
Does the right of withdrawal apply to custom-made or personalised goods?
As a rule no. Under § 312g Abs. 2 Nr. 1 BGB there is no right of withdrawal for goods that are made to the consumer’s specifications or clearly tailored to their personal needs.
When is a product considered made to customer specifications?
The exception applies where the trader produces the item specifically for the individual customer, for example a fitted kitchen planned to the customer’s measurements. The ECJ has confirmed that in such cases the withdrawal right is excluded, even if the customer changes their mind shortly after ordering.
Does it matter whether production has already started?
The exclusion under § 312g Abs. 2 Nr. 1 BGB turns on whether the goods are made to the consumer’s specifications, not on how far production has progressed. Whether a withdrawal is still possible depends on the individual case.
What should traders keep in mind when selling customised products?
Traders should make clear before the order that no right of withdrawal exists for individually manufactured goods, and should document the customer’s specifications. We advise on the drafting of these notices and terms.
