Consumer rights – Distance contracts: No new right of withdrawal at the end of the free trial period unless the consumer has not been sufficiently informed of the total price of the subscription

By virtue of Art. 9 of Directive 2011/83 (Art. VI.47 of the Belgian Code of Economic Law (“BCEL”)), consumers have 14 days from the day of conclusion of a contract concluded at a distance (e.g. a service contract or a contract for the supply of digital content not being supplied on a tangible medium) to withdraw, without having to give any reason and in principle without incurring any costs. In a nutshell, the exercise of this so-called “right of withdrawal” has as a consequence the termination of the parties’ obligation to perform the distance contract.

The question has arisen whether such right of withdrawal should be guaranteed more than once to consumers entering into a distance contract providing for an initial free trial period after which the services concerned (or the digital content not being supplied on a tangible medium) will be provided against payment for an automatically extended fixed term period (i.e. not only when the consumer books the free trial subscription, but also when that subscription is converted into a standard – paid – subscription and upon each renewal of such standard subscription). Think, for example, of subscriptions to streaming platforms that start with a 2-month free trial.

The Court of Justice ruled on that question on 5 October 2023, in case C-565/22¹.

The Court first recalled that, in the framework of a service contract or of a contract for the supply of digital content not being supplied on a tangible medium, the right of withdrawal aims to allow consumers to become aware, in good time, of the characteristics of the service, and to promote informed decision-making by the consumer, allowing that consumer to decide whether he or she wishes to be contractually bound to a trader (§42). It further stated that the purpose of the consumer’s right to withdraw from a distance contract for the performance of services is fulfilled where consumer has been provided, prior to the conclusion of the distance contract, in compliance with Art. 6(1)(e) and 8(2) of Directive 2011/83 (Art. VI.45, §1, 5° and VI.46, §2 BCEL), with clear, comprehensible and explicit information on the total price of the services at stake, whether it is to be paid upon conclusion of that contract or at a later date, such as the date on which that contract is converted into a paid contract or on which it is extended for a fixed term (§47).

As a result, where the consumer has been informed in a clear, comprehensible and explicit manner by the trader, when concluding a contract providing for a period in which the services are performed free of charge, that after that free trial period – and unless the consumer terminates or withdraws from that contract during that period – payment will be required for that performance, nothing justifies the consumer concerned having a new right of withdrawal once that contract has been converted into a paid contract and, furthermore, when that paid contract is extended for a fixed term (§48).

In light of the above, the Court eventually ruled that “the consumer’s right to withdraw from a distance contract is guaranteed only once in respect of a contract for the performance of services which provides for an initial free period for the consumer after which – unless the consumer terminates or withdraws from that contract during that period – payment is required for a period that is automatically extended – unless that contract is terminated – for a fixed term, provided that, when concluding that contract, the consumer has been informed in a clear, comprehensible and explicit manner by that trader that, after that initial free period, payment will be required for that performance of services” (§51).