–

NK, by F. Schubert, Rechtsanwalt,

–

the Spanish Government, by L. Aguilera Ruiz, acting as Agent,

–

the European Commission, by B.‑R. Killmann and C. Valero, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 2(3) and (4), Article 3(3)(f) and Article 16(c) 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).

2

The request has been made in proceedings between NK, on the one hand, and MS and AS, on the other hand, concerning the payment by MS and AS of a fee for architectural services provided to them by NK.

3

Recitals 3, 4, 7, 21 and 26 of Directive 2011/83 state:

…

…

…

4

Article 1 of that directive provides:

‘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.’

5

Article 2 of Directive 2011/83 provides:

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

…

…’

6

Article 3 of that directive 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. …

…

3.   This Directive shall not apply to contracts:

…

…’

7

Article 6 of Directive 2011/83 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:

…

…

…’

8

Article 7(3) of that directive states:

‘Where a consumer wants the performance of services or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating to begin during the withdrawal period provided for in Article 9(2), the trader shall require that the consumer makes such an express request on a durable medium.’

9

Article 9(1) of Directive 2011/83 is worded as follows:

‘Save where the exceptions provided for in Article 16 apply, the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason, and without incurring any costs other than those provided for in Article 13(2) and Article 14.’

10

Article 10(1) of that directive provides:

‘If the trader has not provided the consumer with the information on the right of withdrawal as required by point (h) of Article 6(1), the withdrawal period shall expire 12 months from the end of the initial withdrawal period, as determined in accordance with Article 9(2).’

11

Under Article 12 of Directive 2011/83:

‘The exercise of the right of withdrawal shall terminate the obligations of the parties:

…’

12

Article 14(3) and (4) of that directive provides:

‘3.   Where a consumer exercises the right of withdrawal after having made a request in accordance with Article 7(3) or Article 8(8), the consumer shall pay to the trader an amount which is in proportion to what has been provided until the time the consumer has informed the trader of the exercise of the right of withdrawal, in comparison with the full coverage of the contract. The proportionate amount to be paid by the consumer to the trader shall be calculated on the basis of the total price agreed in the contract. If the total price is excessive, the proportionate amount shall be calculated on the basis of the market value of what has been provided.

4.   The consumer shall bear no cost for:

…’

13

Article 16 of Directive 2011/83 states:

‘Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance and off-premises contracts as regards the following:

…

…’

14

Paragraph 1 of the Bundesgesetz über Fernabsatz- und ausserhalb von Geschäftsräumen geschlossene Verträge (Federal Law on distance and off-premises contracts, BGBl. I, 33/2014; ‘the FAGG’), which transposed Directive 2011/83 into the Austrian legal system, reads:

‘1.   This Federal Law shall apply to distance and off-premises contracts (distance and off-premises transactions) concluded between traders and consumers …

2.   This Federal Law shall not apply … to contracts:

…

…’

15

Paragraph 4 of the FAGG provides:

‘1.   Before the consumer is bound by a contract or his contractual declaration, the trader shall provide him with the following information in a clear and comprehensible manner:

…

…

…’

16

Paragraph 10 of the FAGG provides:

‘Where a distance or off-premises contract has as its object … a service and the consumer wants the trader to begin performance of the contract before expiry of the withdrawal period provided for in Paragraph 11, the trader shall require that the consumer make such an express request – on a durable medium in the case of an off-premises contract.’

17

Paragraph 11(1) of the FAGG states:

‘The consumer may withdraw from a distance or off-premises contract within a period of 14 days, without giving any reason.’

18

Paragraph 12(1) of the FAGG provides:

‘If the trader has not complied with his obligation to provide information pursuant to Paragraph 4(1)(8), the withdrawal period provided for in Paragraph 11 shall be extended by 12 months.’

19

Paragraph 16 of the FAGG is worded as follows:

‘1.   Where the consumer exercises his right of withdrawal under Paragraph 11(1), in the case of a service contract … after having made a request in accordance with Paragraph 10 and after, further to that request, the trader has begun performance of the contract, the consumer shall pay to the trader an amount proportionate to the services provided by the trader up until the withdrawal, in comparison with the total price agreed in the contract. …

2.   There shall be no requirement to pay a proportionate amount as provided for in subparagraph 1 in the case where the trader has not complied with his obligation to provide information pursuant to Paragraph 4(1)(8) and (10).

…’

20

Paragraph 18 of the FAGG provides:

‘1.   The consumer shall have no right of withdrawal in the case of distance or off-premises contracts relating to:

…

…’

21

It is apparent from the order for reference that, on 22 December 2016, MS and AS, consumers within the meaning of Directive 2011/83, concluded with NK, an architect and trader within the meaning of that directive, away from the latter’s business premises, a contract relating to the production of a design for a new single-family house.

22

On 2 February 2017, NK sent MS and AS the construction plan drawn up, an approximate summary of the costs and an invoice in the amount EUR 3780 for the service provided.

23

By an email of 12 February 2017, MS and AS informed NK that they were dissatisfied with the quality of that service and informed her that they were ending the working relationship with immediate effect and withdrawing the planning instructions.

24

NK brought an action before the Bezirksgericht Graz-Ost (District Court, Graz-East, Austria) seeking an order that MS and AS be required to pay to her fees in respect of the planning services performed. In her action, NK argued, primarily, that the FAGG did not apply to the architect’s contract concluded with MS and AS because the services provided related to the construction of a new building and were therefore covered by the exception provided for in Paragraph 1(2)(7) of the FAGG. In any event, even if the FAGG were applicable, NK claimed that MS and AS did not have a right of withdrawal in respect of that contract under Paragraph 18(1)(3) of the FAGG because that contract required that clearly personalised plans be drawn up in accordance with their needs. Lastly, NK stated that the plans drawn up were goods within the meaning of Article 2(3) and (4) of Directive 2011/83.

25

MS and AS contended that the action should be dismissed, arguing that the FAGG was applicable to the contract at issue in the main proceedings. In addition to the fact that Article 3(3)(f) of Directive 2011/83 – which had been transposed into the Austrian legal system in Paragraph 1(2)(7) of the FAGG – concerns construction services and not planning services, architects’ contracts are not mentioned in the list of contracts excluded from the scope of that directive, as set out in recital 26 thereof.

26

MS and AS argued that, as NK had not complied with her obligations to provide information pursuant to Paragraph 4(1)(8) and (10) of the FAGG, the 14-day withdrawal period provided for in Paragraph 11(1) of the FAGG was extended by 12 months in accordance with Paragraph 12(1) thereof, with the result that the withdrawal that occurred on 12 February 2017 was valid. In addition, they submitted, NK began to perform the contract before the expiry of the withdrawal period, without requiring MS and AS to make an express request for such early performance in accordance with Paragraph 10 of the FAGG. Finally, MS and AS submitted that they are not obliged to pay a proportionate amount in the event of withdrawal, as provided for in Paragraph 16(1) of the FAGG, since NK did not comply with her obligations to provide information. MS and AS submitted that they are therefore not liable to pay any remuneration.

27

By a judgment of 12 June 2018, the Bezirksgericht Graz-Ost (District Court, Graz-East) dismissed NK’s application in its entirety. That court did find that the contract at issue in the main proceedings came with the scope of the FAGG since it was not for the construction of a new building within the meaning of Paragraph 1(2)(7) of the FAGG. Similarly, it found that, in accordance with Paragraph 18(1)(3) of the FAGG, MS and AS did not have a right of withdrawal since the construction plan for the single-family house had to be drawn up in accordance with the specific wishes of the interested parties. However, that court held that, since the obligations to provide information laid down in Paragraph 4(1)(8) and (10) of the FAGG had not been met, MS and AS were not liable to pay any remuneration pursuant to Paragraph 16(1) of the FAGG.

28

NK appealed against that judgment to the Landesgericht für Zivilrechtssachen Graz (Regional Court for Civil Matters, Graz, Austria).

29

The referring court has doubts, first, as to whether a contract relating to the provision of the services of an architect consisting in the production of a design for a new building still to be developed comes under the concept of a ‘contract for the construction of new buildings’ for the purposes of Article 3(3)(f) of Directive 2011/83. One argument in favour of an answer in the affirmative is, in the view of the referring court, that the construction of a new building always necessarily entails a design being produced and construction plans being drawn up, such that a contract for the provision of the planning services needed for a construction project are necessarily part of the services provided in connection with the construction of a new building. However, an answer in the negative to that question could be based on the argument that, in the case where the main service provided under an architect’s contract involves solely the drawing up of plans, the provision of such a service does not, stricto sensu, come within the scope of the construction of a building.

30

If the question were to be answered in the negative and, as a result, the FAGG were to apply to the case in the main proceedings, it would next, in the view of the referring court, be necessary to determine whether MS and AS acted properly in withdrawing from the contract at issue in the main proceedings and whether they are required to pay remuneration in respect of the services already provided by NK. In that context, the question which arises in particular is whether that contract comes within the category of contracts for ‘the supply of goods made to the consumer’s specifications or clearly personalised’, in respect of which Article 16(c) of Directive 2011/83 precludes any right of withdrawal.

31

In those circumstances, the Landesgericht für Zivilrechtssachen Graz (Regional Court for Civil Matters, Graz) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

32

By its first question, the referring court asks, in essence, whether Article 3(3)(f) of Directive 2011/83 must be interpreted as meaning that a contract concluded between an architect and a consumer under which the former undertakes to produce, for the latter, merely a design for a new single-family house and, in that context, to draw up plans constitutes a contract for the construction of a new building within the meaning of that provision.

33

In accordance with Article 3(3)(f) of Directive 2011/83, that directive does not apply to, inter alia, contracts for the construction of new buildings.

34

It must be observed from the outset that the concept of a ‘contract for the construction of a new building’ is not defined in Directive 2011/83.

35

However, recital 26 of Directive 2011/83 states that contracts for, inter alia, the construction of new buildings or for the substantial conversion of existing buildings, and which concern, for example, sales of immovable property still to be developed and hire-purchase, are already subject to a number of specific requirements in national legislation and that, since the provisions of that directive are not appropriate to those contracts, the latter should therefore be excluded from the scope of that directive. In that regard, that recital states that a substantial conversion of an existing building should be understood to mean a conversion comparable to the construction of a new building, for example where only the facade of an old building is retained.

36

By contrast, according to the same recital, service contracts, in particular those related to the construction of annexes to buildings (for example, a garage or a veranda) and those related to repair and renovation of buildings other than substantial conversion, should be included in the scope of Directive 2011/83, as well as contracts related to the services of a real-estate agent and those related to the rental of accommodation for non-residential purposes.

37

In her written observations, NK relies on recital 26 of Directive 2011/83 to argue that a contract concluded between an architect and a consumer, such as that at issue in the main proceedings, under which the former undertakes to produce, for the latter, merely a design for a new single-family house and, in that context, to draw up plans, constitutes a contract for the construction of a new building within the meaning of Article 3(3)(f) of Directive 2011/83, and is therefore excluded from the scope of that directive.

38

That argument cannot be accepted.

39

As is clear from Article 1 of Directive 2011/83, read in the light of recitals 3, 4 and 7 thereof, that directive seeks to provide a high level of consumer protection. Furthermore, in EU policies, the protection of consumers – who are in a weaker position in relation to sellers or suppliers, inasmuch as they must be deemed to be less informed, economically weaker and legally less experienced than the opposite party – is enshrined in Article 169 TFEU and in Article 38 of the Charter of Fundamental Rights of the European Union (judgment of 27 March 2019, slewo, C‑681/17, EU:C:2019:255, paragraph 32 and the case-law cited).

40

Furthermore, when the terms to be interpreted appear in a provision which constitutes a derogation from a principle or, more specifically, from EU rules for the protection of consumers, they must be interpreted strictly (see, to that effect, judgments of 10 March 2005, easyCar, C‑336/03, EU:C:2005:150, paragraph 21; of 27 March 2019, slewo, C‑681/17, EU:C:2019:255, paragraph 34; and of 12 March 2020, Verbraucherzentrale Berlin, C‑583/18, EU:C:2020:199, paragraph 27).

41

It follows that Article 3(3)(f) of Directive 2011/83, in so far as it excludes contracts for the construction of new buildings from the scope of that directive, must be interpreted strictly.

42

In that regard, since the wording of that provision refers expressly to contracts for the ‘construction of new buildings’, the object of such contracts must necessarily be the construction of a new building. It is apparent from recital 26 of Directive 2011/83 that the provisions of that directive, such as Articles 9 to 16 thereof on the right of withdrawal, are not appropriate for contracts of that kind.

43

A contract under which the architect undertakes to produce, for the consumer, merely a design for a new single-family house, which may never be followed by its actual construction, occurs at a stage which is too early on in the process of constructing a new building to be covered by the concept of a ‘contract for the construction of a new building’ within the meaning of Article 3(3)(f) of Directive 2011/83.

44

In the present case, it is apparent from the case file available to the Court that, in accordance with the contract at issue in the main proceedings, NK merely produced for MS and AS a design for a new single-family house by drawing up plans to that end. Furthermore, the referring court worded the questions referred by it for a preliminary ruling on the basis of the assumption that the architect’s role was limited to such a task.

45

In those circumstances, a contract such as that at issue in the main proceedings cannot be regarded as being for the construction of a new building.

46

Moreover, excluding from the scope of Directive 2011/83 all contracts for architects’ services connected with the construction of new buildings, such as contracts under which the architect undertakes to produce, for the consumer, merely a design for a new single-family house, even where there is no close link between such contracts and the actual construction of new buildings, could result only from a broad interpretation of Article 3(3)(f) of Directive 2011/83 and would thus run counter to the objective of that directive.

47

Accordingly, although it is true that a contract concluded between an architect and a consumer under which the former undertakes to produce, for the latter, merely a design for a new single-family house and, in that context, to draw up plans may precede the future construction of a new building, such a contract cannot, however, be regarded as being for the construction of a new building within the meaning of Article 3(3)(f) of Directive 2011/83.

48

In the light of all of the foregoing considerations, the answer to the first question is that Article 3(3)(f) of Directive 2011/83 must be interpreted as meaning that a contract concluded between an architect and a consumer under which the former undertakes to produce, for the latter, merely a design for a new single-family house and, in that context, to draw up plans does not constitute a contract for the construction of a new building within the meaning of that provision.

49

By its second question, the referring court asks, in essence, whether Article 2(3) and (4) and Article 16(c) of Directive 2011/83 are to be interpreted as meaning that a contract concluded between an architect and a consumer under which the former undertakes to produce for the latter, in accordance with the latter’s requirements and wishes, a design for a new single-family house and, in that context, to draw up plans constitutes a contract for the supply of goods made to the consumer’s specifications or clearly personalised within the meaning of that latter provision.

50

In that regard, it must be recalled that Articles 9 to 16 of Directive 2011/83 grant the consumer the right of withdrawal following, inter alia, the conclusion of an off-premises contract within the meaning of Article 2(8) of that directive and establish the conditions and procedures for the exercise of that right (see, to that effect, judgment of 7 August 2018, Verbraucherzentrale Berlin, C‑485/17, EU:C:2018:642, paragraph 32).

51

The objective of those provisions is set out in, inter alia, recital 21 of Directive 2011/83, according to which, when he or she is away from the trader’s business premises, the consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the trader’s visit (see, to that effect, judgment of 7 August 2018, Verbraucherzentrale Berlin, C‑485/17, EU:C:2018:642, paragraph 33).

52

In accordance with Article 9(1) of Directive 2011/83, save where the exceptions provided for in Article 16 apply, the consumer thus has a period of 14 days in which to withdraw from an off-premises contract, in particular without incurring any costs other than those provided for in Article 13(2) and Article 14 of that directive.

53

It is apparent from Article 12(a) of Directive 2011/83 that the exercise of the right of withdrawal has the effect of terminating the obligations of the parties to perform the off-premises contract.

54

However, Article 16 of that directive provides for exceptions to the right of withdrawal, in particular in the case, referred to in point (c) of that article, of off-premises contracts for the supply of goods made to the consumer’s specifications or clearly personalised.

55

In her written observations, NK submits that that exception to the right of withdrawal is applicable in the present case inasmuch as the construction plans at issue in the main proceedings come under that category of goods.

56

In that regard, Article 16(c) of Directive 2011/83, which constitutes an exception to the right of withdrawal, is, as a provision of EU law which restricts the rights granted for the purposes of consumer protection, to be interpreted strictly, as is clear from the case-law recalled in paragraph 40 of this judgment.

57

It is apparent from the definitions set out in Article 2(3) and (4) of Directive 2011/83 that the concept of ‘goods made to the consumer’s specifications’ must be understood as referring to a tangible movable item that is non-prefabricated and is made on the basis of an individual choice of or decision by the consumer.

58

It is true that a contract concluded between an architect and a consumer under which the former undertakes to produce for the latter, in accordance with the latter’s requirements and wishes, a design for a new single-family house necessarily entails the architect drawing up construction plans, which are then given to the consumer so that he or she can use them for the purposes of later construction works. Those plans may be provided as documents in paper format or take the form of digital files. In the first case, they are tangible movable items which are made by the architect on the basis of the consumer’s directions and choices.

59

However, the fact remains that the main object of such a contract consists in the provision by the architect of an intellectual service consisting in the production of a design for a future single-family house, with the supply of the plans as goods being merely secondary in comparison with the main service to be provided.

60

A contract such as that at issue in the main proceedings cannot therefore be regarded as being for the supply of goods made to the consumer’s specifications or clearly personalised within the meaning of Article 16(c) of Directive 2011/83.

61

By contrast, such a contract does come under the concept of a ‘service contract’, a contract for which that directive likewise provides – in Article 16(a) thereof – an exception to the withdrawal right in cases where the service has been fully performed, on condition, however, that the performance began with the consumer’s prior express consent and that the consumer has also acknowledged that he or she will lose his or her right of withdrawal once the contract has been fully performed by the trader.

62

The term ‘service contract’ is broadly defined in Article 2(6) of Directive 2011/83 as covering any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof. It follows from the wording of that provision that that term must be understood as including all contracts which do not come within the scope of the term ‘sales contract’, as defined in Article 2(5) of Directive 2011/83 (see, to that effect, judgment of 12 March 2020, Verbraucherzentrale Berlin, C‑583/18, EU:C:2020:199, paragraph 22).

63

However, a contract such as that at issue in the main proceedings, the sole object of which is the production of a design for a new single-family house, does not concern the transfer of the ownership of goods within the meaning of Article 2(5) of Directive 2011/83.

64

In the present case, it appears that the conditions for applying the exception to the right of withdrawal provided for in Article 16(a) of Directive 2011/83, namely the consumer’s prior express consent vis-à-vis the performance of the service at issue, on the one hand, and the provision of information by the trader as regards the exercise of the right of withdrawal, on the other hand, have not been satisfied; this is, however, a matter for the referring court to determine.

65

In the light of all of the foregoing considerations, the answer to the second question is that Article 2(3) and (4) and Article 16(c) of Directive 2011/83 must be interpreted as meaning that a contract concluded between an architect and a consumer under which the former undertakes to produce for the latter, in accordance with the latter’s requirements and wishes, a design for a new single-family house and, in that context, to draw up plans does not constitute a contract for the supply of goods made to the consumer’s specifications or clearly personalised within the meaning of that latter provision.

66

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby rules: