Provisional text
OPINION OF ADVOCATE GENERAL SZPUNAR
delivered on 26 February 2026 (1)
Case C‑234/25
Sky Österreich Fernsehen GmbH
v
Verein für Konsumenteninformation
(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))
( Reference for a preliminary ruling – Consumer protection – Consumer rights – Exceptions to the right of withdrawal – Loss of the right of withdrawal – Digital service – Digital content – Subscription to a streaming service – Classification of such a service )
I. Introduction
1. In recent years the use of streaming platforms has become more common, while at the same time the range of those platforms has considerably increased: there are now numerous platforms available to consumers, and the content which they offer has expanded. While those platforms each have specific features, they nonetheless have certain major characteristics in common.
2. Thus, the supply of a streaming service entails content such as videos or musical works being made available to consumers to be viewed or listened to. That content is stored on a server, which consumers may access with their device via a hypertext link or an app. They are then able to view or listen to a work chosen from the content made available via the internet, live or on demand, according to the terms of their subscription and the offer.
3. Most frequently, the supply of a streaming service also offers the consumer the possibility of downloading the selected content, so that it can be viewed or listened to even in the absence of an internet connection. In such a situation, the chosen work is then stored on an individual storage medium and can be viewed even without access to the internet, generally within a limited period beyond which it will no longer be possible to access the content in question in the form of a download, although it remains available online.
4. In addition, the offer of content to be viewed or listened to is generally accompanied by a personalisation of their presentation on the platform, specific to each consumer, via playlists such as current items available to view or listen to, or personalised suggestions based on content already consumed.
5. Those platforms are at the centre of the present case, in which the Court must determine whether the supply of a streaming service must be classified as an offer of ‘digital content’ or of a ‘digital service’, for the purposes of the provisions of Directive 2011/83/EU. (2)
6. That classification is not merely semantic. Under the provisions of that directive, the right of withdrawal provided for in that directive may be extinguished before the expiry of the 14-day period which it provides for as a general rule where a ‘digital service’ is supplied but not where ‘digital content’ is offered.
II. Legal background
A. European Union law
1. Directive 2019/770
7. Recitals 19 and 57 of Directive (EU) 2019/770 (3) state:
‘(19) The Directive should address problems across different categories of digital content, digital services, and their supply. In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content or digital service, this Directive should cover, inter alia, computer programmes, applications, video files, audio files, music files, digital games, e-books or other e-publications, and also digital services which allow the creation of, processing of, accessing or storage of data in digital form, including software-as-a-service, such as video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media. As there are numerous ways for digital content or digital services to be supplied, such as transmission on a tangible medium, downloading by consumers on their devices, web-streaming, allowing access to storage capabilities of digital content or access to the use of social media, this Directive should apply independently of the medium used for the transmission of, or for giving access to, the digital content or digital service. However, this Directive should not apply to internet access services.
…
(57) Digital content or digital services could also be supplied to consumers in a continuous manner over a period of time. Continuous supply can include cases whereby the trader makes a digital service available to consumers for a fixed or an indefinite period of time, such as a two-year cloud storage contract or an indefinite social media platform membership. The distinctive element of this category is the fact that the digital content or digital service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force. Therefore, it is justified that the trader, in such cases, should only be liable for a lack of conformity which appears during that period of time. The element of continuous supply should not necessarily require a long-term supply. Cases such as web-streaming of a video clip should be considered continuous supply over a period of time, regardless of the actual duration of the audio-visual file. Cases where specific elements of the digital content or digital service are made available periodically or on several instances during the fixed duration of the contract, or for as long as the indefinite contract is in force, should also be considered a continuous supply over a period of time, for instance where the contract stipulates that a copy of anti-virus software can be used for a year and will be automatically updated on the first day of each month of this period, or that the trader will issue updates whenever new features of a digital game become available, and the digital content or digital service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.’
8. Article 2 of that directive, entitled ‘Definitions’, provides, in paragraphs 1 and 2:
‘For the purposes of this Directive, the following definitions apply:
(1) “digital content” means data which are produced and supplied in digital form;
(2) “digital service” means:
(a) a service that allows the consumer to create, process, store or access data in digital form; or
(b) a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service;’
9. Article 3 of that directive, entitled ‘Scope”, provides, in paragraph 5(g):
‘5. This Directive shall not apply to contracts regarding:
…
(g) the supply of digital content where the digital content is made available to the general public other than by signal transmission as a part of a performance or event, such as digital cinematographic projections;’
10. Article 5 of that directive, entitled ‘Supply of the digital content or digital service’, provides:
‘1. The trader shall supply the digital content or digital service to the consumer. Unless the parties have agreed otherwise, the trader shall supply the digital content or digital service without undue delay after the conclusion of the contract.
2. The trader shall have complied with the obligation to supply when:
(a) the digital content or any means suitable for accessing or downloading the digital content is made available or accessible to the consumer, or to a physical or virtual facility chosen by the consumer for that purpose;
(b) the digital service is made accessible to the consumer or to a physical or virtual facility chosen by the consumer for that purpose.’
2. Directive (EU) 2019/2161
11. Recitals 30 and 38 of Directive (EU) 2019/2161 (4) state:
‘(30) The definitions of digital content and digital services in [Directive 2011/83] should be aligned to those in [Directive 2019/770]. Digital content covered by [Directive 2019/770] covers a single act of supply, a series of individual acts of supply, or continuous supply over a period of time. The element of continuous supply should not necessarily require a long-term supply. Cases such as web-streaming of video clips should be considered continuous supply over a period of time, regardless of the actual duration of the audiovisual file. It may therefore be difficult to distinguish between certain types of digital content and digital services, since both can involve continuous supply by the trader over the duration of the contract. Examples of digital services are video and audio sharing services and other file hosting, word processing or games offered in the cloud, cloud storage, webmail, social media and cloud applications. The continuous involvement of the service provider justifies the application of the rules on the right of withdrawal provided for in [Directive 2011/83] that effectively allow the consumer to test the service and decide, during the 14-day period from the conclusion of the contract, whether to keep it or not. Many contracts for the supply of digital content which is not supplied on a tangible medium are characterised by a single act of supply to the consumer of a specific piece or pieces of digital content, such as specific music or video files. Contracts for the supply of digital content which is not supplied on a tangible medium remain subject to the exception from the right of withdrawal set out in point (m) of the first paragraph of Article 16 of [Directive 2011/83] which provides that the consumer loses the right of withdrawal when the performance of the contract is started, such as download or streaming of the content, subject to the consumer’s prior express consent to begin the performance during the right of withdrawal period and acknowledgement that he has thereby lost his right of withdrawal. Where there is doubt as to whether the contract is a service contract or a contract for the supply of digital content which is not supplied on a tangible medium, the rules on right of withdrawal for services should apply.
…
(38) Point (m) of the first paragraph of Article 16 of [Directive 2011/83] provides for an exception to the right of withdrawal in respect of digital content which is not supplied on a tangible medium if the consumer has given prior express consent to begin the performance before the expiry of the right of withdrawal period and acknowledged that he thereby loses his right of withdrawal. Point (b) of Article 14(4) of that Directive provides for a contractual sanction when this requirement is not fulfilled by the trader, namely, the consumer does not have to pay for the digital content consumed. The requirement to obtain the consumer’s prior express consent and acknowledgment is accordingly only relevant for digital content which is provided against the payment of the price. It is therefore necessary to amend point (m) of the first paragraph of Article 16 to the effect that the requirement for traders to obtain the consumer’s prior express consent and acknowledgment only applies to contracts that place the consumer under an obligation to pay.’
3. Directive 2011/83
12. Directive 2011/83 was amended by Directive 2019/2161. The transposition period expired on 28 November 2021 and the national transposing provisions have been applicable since 28 May 2022.
13. Article 2 of Directive 2011/83, as amended by Directive 2019/2161, provides:
‘For the purposes of this Directive, the following definitions shall apply:
…
(6) “service contract” means any contract other than a sales contract under which the trader supplies or undertakes to supply a service, including a digital service, to the consumer;
…
(11) “digital content” means digital content as defined in point (1) of Article 2 of [Directive 2019/770];
…
(16) “digital service” means a digital service as defined in point (2) of Article 2 of [Directive 2019/770];
…’
14. Article 14 of that directive, as amended by Directive 2019/2161, entitled ‘Obligations of the consumer in the event of withdrawal’, provides:
‘…
2a In the event of withdrawal from the contract, the consumer shall refrain from using the digital content or digital service and from making it available to third parties.
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:
…
(b) the supply, in full or in part, of digital content which is not supplied on a tangible medium where:
(i) the consumer has not given his prior express consent to the beginning of the performance before the end of the 14-day or 30-day period referred to in Article 9;
(ii) the consumer has not acknowledged that he loses his right of withdrawal when giving his consent; or
(iii) the trader has failed to provide confirmation in accordance with Article 7(2) or Article 8(7).
…’
15. Article 16 of that directive, as amended by Directive 2019/2161, provides:
‘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:
(a) service contracts after the service has been fully performed but, if the contract places the consumer under an obligation to pay, only if the performance has begun with the consumer’s prior express consent and acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader;
…
(i) the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery;
(j) the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications;
…
(m) contracts for the supply of digital content which is not supplied on a tangible medium if the performance has begun and, if the contract places the consumer under an obligation to pay, where:
(i) the consumer has provided prior express consent to begin the performance during the right of withdrawal period;
(ii) the consumer has provided acknowledgement that he thereby loses his right of withdrawal; and
(iii) the trader has provided confirmation in accordance with Article 7(2) or Article 8(7).
…’
B. Austrian law
16. Paragraph 3 of the Bundesgesetz über über Fernabsatz- und außerhalb von Geschäftsräumen geschlossene Verträge (Fern- und Auswärtsgeschäfte-Gesetz – FAGG) (Federal Law on distance and off-premises contracts) (5) provides the following definitions:
‘…
4. “digital services” means digital content or digital service;
5. “digital content” means data produced and supplied in digital form, including data developed in accordance with consumer instructions;
6. “digital service” means:
(a) a service that allows the consumer to create, process, store in digital form or access data in digital form; or,
(b) a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service,
including, in each case, services developed in accordance with consumer instructions.
…’
17. Paragraph 18 of that law, entitled ‘Exceptions to the right of withdrawal’, provides:
‘(1) The consumer has no right of withdrawal in respect of, inter alia, distance or off-premises contracts relating to:
1. services where the trader has fully performed the service, it being understood that, in cases where the consumer is required to make a payment under the contract, the right of withdrawal ceases only if, in addition, the trader has begun to perform the contract with the consumer’s prior express consent and if the consumer
(a) has either confirmed, before the provision of services begins, that he or she understands that he or she will lose his or her right of withdrawal once the contract is fully performed;
(b) or has expressly requested the trader to carry out a visit in order to have repair work carried out;
…
11. the supply of digital content not intended to be supplied on a tangible medium if the trader has begun performance of the contract, it being understood that, in cases where the consumer is required to make a payment under the contract, the right of withdrawal ceases only if, in addition,
(a) the consumer has provided prior express consent to begin performance of the contract before the expiry of the withdrawal period;
(b) the consumer has confirmed that he or she understands that he or she will lose his or her right of withdrawal as a result of performance of the contract having begun early; and
(c) the trader has provided the consumer with a copy or confirmation in accordance with Paragraph 5(2) or Paragraph 7(3).
…’
III. The dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
18. Sky Österreich Fernsehen GmbH (‘Sky Österreich’), a private television company established in Austria, offers on that territory, inter alia, streaming services. The digital content made available for viewing is located on a server which customers can access with their devices via a link or an app, in order to be able to view via the internet, live or on demand, the programmes included in their subscription. Downloads are also possible, depending on the licensors of usage rights concerned. Digital content can be stored in the memory of the customer’s own device and viewed independently of online access. A download may be viewed only once and must be viewed in full within 48 hours from the time when the customer begins viewing.
19. An online subscription for streaming services is possible only if the customer consents, by clicking on it, the following contractual clause:
‘When ordering a subscription: I have read and understood Sky X’s withdrawal policy. I agree that Sky will begin performing the contract before the 14-day withdrawal period expires and that I therefore lose my right of withdrawal when ordering a subscription.’
20. Verein für Konsumenteninformation (‘VKI’), a consumer protection association, maintains that that information about the right of withdrawal supplied to consumers is insufficient. In its submission, the streaming subscription constitutes a ‘digital service’ and, consequently, only the full supply of the service renders the right of withdrawal void where the consumer has acknowledged that he or she will lose that right at that time. Conversely, Sky Österreich is of the view that the streaming service constitutes ‘digital content’, so that the right of withdrawal ceases to exist as soon as the performance of the contract begins.
21. VKI’s action for an order requiring Sky Österreich to refrain from using the abovementioned contractual clause in its commercial relations with consumers was dismissed at first instance. However, the appellate court upheld VKI’s appeal and varied the first-instance judgment, classifying the streaming service offered by Sky Österreich as a ‘digital service’, in respect of which the right of withdrawal cannot become void when performance of the contract begins, but only when the service has been supplied in full.
22. On appeal by Sky Österreich, the Oberster Gerichtshof (Supreme Court, Austria), the referring court in the present case, asks about the criteria by which it may be determined whether streaming services offering services comparable to those of Sky Österreich must be classified as contracts for digital content or for digital services.
23. In the referring court’s view, the service provided by Sky Österreich meets the condition of ‘data produced and supplied in digital form’ and therefore corresponds to the definition of ‘digital content’. It observes that streaming designates only the data transmission process whereby the data can be viewed or listened to during transmission. However, that service might also be considered to be ‘storage of and access to data in digital form’ and therefore to constitute a ‘digital service’, especially since it is not supplied in the form of a single act, it is generally accompanied by a corresponding update of the offer and by individual recommendations based on the behaviour of the user concerned and the contract is generally intended to be of a certain duration.
24. In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Must Article 16(m) of [Directive 2011/83], read in conjunction with Article 2(11) thereof, be interpreted as meaning that the offering of streaming services, where the digital content made available for viewing is located on a server which may be accessed by customers from their terminal via a link or an app, who then can watch the programmes included in their subscription both ‘live’ and ‘on demand’ via the internet or, alternatively, can download the digital content and store it in the memory of their own device and, independently of online access, view it once within 48 hours, constitutes a supply of ‘digital content’ within the meaning of those provisions?’
25. Written observations were lodged by VKI, Sky Österreich, the Italian and Polish Governments and the European Commission. No oral hearing has been held.
IV. Analysis
26. By its single question for a preliminary ruling, the referring court asks, in essence, whether Article 2(11) and Article 16(m) of Directive 2011/83 must be interpreted as meaning that a streaming service, in the context of which the content made available to the consumer is located on a server which customers can access via a hypertext link or an app in order to view it live, on demand, or offline after it has been downloaded, constitutes an offer of ‘digital content’ in respect of which the 14-day right of withdrawal provided for in that directive may, under certain conditions, not apply.
27. Sky Österreich maintains that the service which it supplies must be classified as an ‘offer of “digital content”’ in respect of which it is possible to provide that the consumer’s 14-day right of withdrawal does not apply, provided that the consumer was so informed and has acknowledged that he or she will lose that right. Conversely, the other parties all maintain that the offer of a streaming service such as that at issue in the main proceedings is an offer of a ‘digital service’ to which the exception to the right of withdrawal provided for in Article 16(m) of Directive 2011/83 cannot apply, with the consequence that consumers should have a period of 14 days in which to cancel their subscription should they wish to do so.
A. The concepts of ‘digital content’ and ‘digital service’
28. The concepts of ‘digital content’ and ‘digital service’ are defined, respectively, in Article 2(11) and (16) of Directive 2011/83, which refers to the definitions in Article 2(1) and (2) of Directive 2019/770.
29. In accordance with settled case-law, when interpreting those provisions, it is necessary to take account not only of their wording but also of their context and the objectives pursued by the rules of which they form part. (6)
1. Literal interpretation
30. Article 2(11) and (16) of Directive 2011/83 defines ‘digital content’ as ‘data which are produced and supplied in digital form’ and ‘digital service’ as a service that either ‘allows the consumer to create, process, store or access data in digital form’ or ‘allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service’.
31. It must be stated that the wording of Directive 2011/83 does not allow a precise definition of what is covered by an offer of digital content and what is covered by an offer of a digital service. As the referring court observes, an offer of streaming may be classified as both a ‘supply of digital content’, since it allows data produced in digital form to be made available and viewed, and a ‘supply of a digital service’ that enables the consumer to access data and store them temporarily.
32. The EU legislature acknowledges, moreover, that doubts may still remain as to whether a contract is a service contract or a contract for the supply of digital content which is not supplied on a tangible medium. (7)
33. It is therefore appropriate to carry out a systemic and a teleological interpretation of those provisions in order to identify a demarcation line between the supply of digital content, within the meaning of Article 2(11) of Directive 2011/83, as amended by Directive 2019/2161, and the supply of digital services, within the meaning of Article 2(16) of that directive.
2. Systemic interpretation
34. In the first place, although the wording of Article 2(11) and (16) of Directive 2011/83 does not in itself permit a precise definition of what is covered by the concept of ‘digital content’ or by that of ‘digital service’, Directives 2011/83 and 2019/2161 – and in particular their recitals – nonetheless provide helpful indications.
35. Thus, as regards digital content, recital 19 of Directive 2011/83, in its original version, refers by way of example to ‘computer programs, applications, games, music, videos or texts, irrespective of whether they are accessed through downloading or streaming, from a tangible medium or through any other means’. As regards digital services, moreover, recital 30 of Directive 2019/2161 refers to ‘video and audio sharing services and other file hosting, word processing or games offered in the cloud, cloud storage, webmail, social media and cloud applications’.
36. While again acknowledging, in recital 30 of Directive 2019/2161, that ‘it may … be difficult to distinguish between certain types of digital content and digital services’, the legislature nonetheless provides, by means of various examples, certain indications of what characterises an offer of ‘digital content’ as opposed to an offer of a ‘digital service’. Thus, the former implies a ‘one-off’ offering, limited in time and relating to the content offered, while the latter assumes a certain duration and a commitment on the part of the trader, so that the mere supply of specific content does not exhaust the service.
37. That is also what emerges from the information provided by the legislature, again in the recitals of Directives 2011/83, 2019/770 and 2019/2161. It is stated in those recitals that digital content ‘covers a single act of supply, a series of individual acts of supply, or continuous supply over a period of time’ (8) while digital services assume ‘the continuous involvement of the service provider’. (9) That, to my mind, constitutes the determining criterion for defining what is covered by ‘digital content’ and what is covered by the concept of ‘digital service’.
38. As the Commission submits, the continuous involvement of the service provider reveals a particular dynamic, as regards both the content made available and the services offered at the same time as the content is made available. In other words, the offer of digital service, unlike the offer of digital content, cannot be limited to a situation in which content is made available on a ‘one-off’ and limited basis.
39. In the second place, that interpretation seems to me to be confirmed by a reading of Article 2(11) and (16) of Directive 2011/83 in the light of Article 16(m) of that directive, which provides that the right of withdrawal is not to apply, under certain conditions, to contracts for the supply of digital content.
40. Such an exception to the right of withdrawal is justified by the fact that, in the case of an offer of digital content, the consumer knows precisely the content which he or she is about to view or listen to, in so far as it constitutes a ‘one-off’ and specific offer. Furthermore, once the content made available has been viewed or listened to, it is no longer of more than limited interest to the consumer, since it has been consumed in its entirety. Thus, there is no period during which the consumer can test the content made available.
41. The position is different in the case of an offer of a digital service. In such a case, having regard to the involvement of the trader and of the services attached to the making available of the content, the existence of a right of withdrawal is fully justified. In the context of a subscription to a streaming platform, the customer may thus ‘test’ the platform in order to become familiar with the catalogue of works which it offers, its ergonomics and the viewing and listening possibilities offered, and of the possible personalisation of the platform according to the content consumed. In that situation, it is not a matter of merely consuming the content offered, but rather of ascertaining whether the service offered by the trader, as a whole, is suitable for the consumer. Where it is not, he or she may then make use of his or her right of withdrawal.
42. In any event, it is apparent from the solution adopted by the Court in the judgment in PE Digital (10) that Article 16(m) of Directive 2011/83 constitutes an exception to the right of withdrawal which, as a provision of EU law which restricts the rights granted for reasons relating to consumer protection, must be interpreted strictly. (11) In other words, the concept of ‘digital content’, which entails the application of the exception to the right of withdrawal, cannot be interpreted broadly and should therefore be limited, in my view, to ‘one-off’ acts of supply. When a service goes beyond such an act, it should therefore be classified as ‘digital service’, within the meaning of Article 2(16) of that directive.
43. In those circumstances, I am of the view that it follows from a systemic interpretation of Article 2(11) and (16) and Article 16(m) of Directive 2011/83 that a streaming service such as that at issue in the present case does not constitute an offer of ‘digital content’.
44. That conclusion is borne out by the teleological interpretation of those provisions.
3. Teleological interpretation
45. Directive 2011/83 is intended to provide ‘the right balance between a high level of consumer protection and the competitiveness of enterprises’. (12)
46. As the Court has held, the right of withdrawal is designed to protect the consumer in the particular situation of mail-order sales, in which he or she is not actually able to see the product or ascertain the nature of the service provided before concluding the contract. The right of withdrawal is therefore intended to offset the disadvantage for the consumer resulting from a distance contract by granting him or her an appropriate period for reflection during which he or she can examine and test the goods acquired. (13)
47. The exception to the right of withdrawal provided for in Article 16(m) of Directive 2011/83, on the other hand, is intended to protect the trader where the content offered by the latter is known and can be immediately consumed. In such a situation, as the Italian Government submits, the consumer benefits in full from all the advantages of the service at the time when it is performed. Furthermore, as Sky Österreich contends, where digital content is concerned, the reinstatement of the status quo ante in which the interests of the trader would be protected is not possible, so that permitting subsequent withdrawal by the consumer would amount, ultimately, to the trader supplying the digital content free of charge.
48. In those circumstances, it is indeed the broader nature of ‘digital service’ that entails the continuous involvement of the trader, as opposed to the mere supply of ‘digital content’, that justifies the consumer being able to rely on his or her right of withdrawal if, after testing it, he or she is not satisfied. Conversely, it is the ‘one-off’ and specific nature of the ‘digital content’ that justifies the consumer being unable to test it, as he or she is aware, before the content in question is made available, of what precisely he or she will receive.
49. It is therefore also apparent, on studying the objectives of Directive 2011/83, as amended by Directive 2019/2161, that a streaming service, such as that at issue in the present case, does not constitute an offer of ‘digital content’ for which the 14-day right of withdrawal provided for in that directive may not apply.
B. The possibility of abuse
50. To my mind, such a conclusion is not called into question by Sky Österreich’s argument that permitting the consumer to make use of use his or her right of withdrawal in the context of a subscription to a streaming offer such as that at issue in the main proceedings would surely lead to abusive subscriptions.
51. Sky Österreich thus indicates that subscriptions to the streaming service are found to peak, in particular, when the first or last season of popular series is made available, or when decisive matches in football championships take place. It observes that if the consumer were able to cancel his or her subscription immediately after having consumed particular content, he or she would be able to view the content in question virtually free of charge.
52. However, as the Commission has emphasised, that possibility of abuse was expressly taken into account by the legislature in Article 14(3) of Directive 2011/83, as amended by Directive 2019/2161, where it provides that ‘where a consumer exercises the right of withdrawal …, 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’.
53. That solution also applies where the consumer cancels his or her subscription to the streaming platform: the trader receives compensation corresponding to the making available of the content during the period in which the consumer had access to it.
54. According to Sky Österreich, such compensation would not be sufficient in the light of the Court’s case-law, according to which in order to determine the proportionate amount to be paid by the consumer to the trader where that consumer has expressly requested that the performance of the contract begin during the withdrawal period and withdraws from that contract, it is appropriate, in principle, to take account of the price agreed in the contract for the full coverage of the contract and to calculate the amount owed pro rata temporis. (14) In Sky Österreich’s submission, such a calculation does not take into account the different values of the content proposed, as a final phase in a sporting competition has a different economic value from a daily soap opera.
55. It cannot be overlooked that consumers might be tempted to exercise their right of withdrawal with the sole aim of being able to access a single piece of attractive content, and that a calculation on a pro rata temporis basis, such as that envisaged in the case-law, might not provide fair compensation for the trader.
56. However, I note, first, that Article 14(3) of Directive 2011/83 expressly provides for payment of an amount that is in proportion to what has been provided, with no reference to the period during which the service in question was provided. Second, the solution adopted by the Court in the judgment in PE Digital (15) is justified, in my view, by the fact that the economic value of the service provided in that case – a dating site – was of a stable and consistent nature. In other words, it was not more attractive for a consumer to subscribe to the service at a specific time in order to benefit from a particular piece of content.
57. Having regard to those considerations, I am of the view that that solution cannot be strictly transposed to the situation of the financial compensation payable by a consumer who has exercised his or her right of withdrawal after having subscribed to a streaming platform, as that compensation can to my mind take into consideration, in addition to the period during which the consumer remained a subscriber to the platform, the economic value of the various content made available and viewed. (16)
58. In those circumstances, I maintain the conclusion set out in point 49 of this Opinion.
V. Conclusion
59. In the light of all of the foregoing considerations, I propose that the Court should answer the question for a preliminary ruling referred by the Oberster Gerichtshof (Supreme Court, Austria) as follows:
Article 2(11) and (16) and Article 16(m) 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, as amended by Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019,
must be interpreted as meaning that a streaming service, in the context of which the content made available to the consumer is stored on a server which customers may access via a hypertext link or an app in order to view it live, on demand or offline after downloading it, does not constitute an offer of ‘digital content’.
1 Original language: French.
2 Directive 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).
3 Directive of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (OJ 2019 L 136, p. 1).
4 Directive of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules (OJ 2019 L 328, p. 7).
5 BGBl. I No 109/2022.
6 Judgments of 17 November 1983, Merck (292/82, EU:C:1983:335, paragraph 12); of 22 December 2022, Sambre & Biesme and Commune de Farciennes (C‑383/21 and C‑384/21, EU:C:2022:1022, paragraph 54); and of 15 January 2026, AVR-Afvalverwerking (C‑692/23, EU:C:2026:4, paragraph 37) judgment of 15 January 2026, Ambito territoriale di caccia Ancona 2 (C‑615/24, EU:C:2026:10, paragraph 23).
7 Recital 30 of Directive 2019/2161.
8 Recital 30 of Directive 2019/2161.
9 Recital 30 of Directive 2019/2161.
10 Judgment of 8 October 2020 (C‑641/19, EU:C:2020:808).
11 Judgment of 8 October 2020, PE Digital (C‑641/19, EU:C:2020:808, paragraph 43).
12 Recital 4 of Directive 2011/83 and recital 2 of Directive 2019/770.
13 Judgment of 23 January 2019, Walbusch Walter Busch (C‑430/17, EU:C:2019:47, paragraph 45).
14 Judgment of 8 October 2020, PE Digital (C‑641/19, EU:C:2020:808).
15 Judgment of 8 October 2020 (C‑641/19, EU:C:2020:808).
16 In that regard, it seems to me to be easier to assess the economic value of specific content where such content is also available to purchase or hire without a subscription. Offering such a possibility does indeed mean that the trader will no longer conclude longer-term subscription contracts with consumers, but allows the value of the transmitted content to be calculated precisely.