Provisional text

JUDGMENT OF THE COURT (First Chamber)

9 July 2026 (*)

( Reference for a preliminary ruling – Consumer protection – Consumer rights – Directive 2011/83/EC – Exceptions from the right of withdrawal – Contracts for the supply of digital content which is not supplied on a tangible medium – Article 16(m) – Subscription to a streaming service – Supply of digital services – Offer of a dynamic nature going beyond the mere stable and, as the case may be, continuous provision of specific content )

In Case C‑234/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Supreme Court, Austria), made by decision of 19 March 2025, received at the Court on 27 March 2025, in the proceedings

Sky Österreich Fernsehen GmbH

Verein für Konsumenteninformation,

THE COURT (First Chamber),

composed of F. Biltgen, President of the Chamber, I. Ziemele, A. Kumin, S. Gervasoni and M. Bošnjak (Rapporteur), Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Sky Österreich Fernsehen GmbH, par G. Staber, Rechtsanwältin,

– Verein für Konsumenteninformation, by A.M. Kosesnik-Wehrle, H. Kosesnik‑Wehrle and S. Langer, Rechtsanwälte,

– the Italian Government, by S. Fiorentino, acting as Agent, and by I. Fresu, procuratore dello Stato, and D.G. Pintus, avvocato dello Stato,

– the Polish Government, by B. Majczyna, acting as Agent,

– the European Commission, by P. Kienapfel and I. Rubene, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 26 February 2026,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(11) and point (m) of the first subparagraph of Article 16 (‘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 (OJ 2011 L 304, p. 64).

2 The request has been made in proceedings between Sky Österreich Fernsehen GmbH (‘Sky Österreich’) and the Verein für Konsumenteninformation (‘VKI’) concerning the existence of a right of withdrawal for consumers who have subscribed to the streaming service offered by Sky Österreich.

Legal context

European Union law

– Directive 2011/83

3 Recitals 4 and 19 of Directive 2011/83, as amended by Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 (OJ 2019 L 328, p. 7) (‘Directive 2011/83’), state:

‘(4) … 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.

…

(19) Digital content means data which are produced and supplied in digital form, such as 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. Contracts for the supply of digital content should fall within the scope of this Directive. If digital content is supplied on a tangible medium, such as a CD or a DVD, it should be considered as goods within the meaning of this Directive. Similarly to contracts for 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, contracts for digital content which is not supplied on a tangible medium should be classified, for the purpose of this Directive, neither as sales contracts nor as service contracts. For such contracts, the consumer should have a right of withdrawal unless he has consented to the beginning of the performance of the contract during the withdrawal period and has acknowledged that he will consequently lose the right to withdraw from the contract. …’

4 Article 1 of Directive 2011/83, entitled ‘Subject matter’, 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 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;

…

(11) “digital content” means digital content as defined in point (1) of Article 2 of Directive (EU) 2019/770 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)];

…

(16) “digital service” means a digital service as defined in point (2) of Article 2 of Directive [2019/770];

…’

6 Article 9 of that directive, entitled ‘Right of withdrawal’, provides, in paragraph 1 thereof:

‘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.’

7 Article 14 of that directive entitled ‘Obligations of the consumer in the event of withdrawal’, provides, in paragraph 3 thereof:

‘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.’

8 Article 16 of Directive 2011/83, entitled ‘Exceptions from the right of withdrawal’, provides, in point (m) of the first subparagraph thereof:

‘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:

…

(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).

…’

– Directive 2019/770

9 Article 2 of Directive 2019/770, entitled ‘Definitions’, provides:

‘For the purpose of this Directive, the following definitions shall 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;

…’

– Directive 2019/2161

10 Recital 30 of Directive 2019/2161 states:

‘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.’

Austrian law

11 Paragraph 18 of the Bundesgesetz über Fernabsatz- und außerhalb von Geschäftsräumen geschlossene Verträge (Fern- und Auswärtsgeschäfte-Gesetz – FAGG) (Federal law on distance selling contracts and contracts concluded off-premises (Law on distance and off-premises contracts – FAGG)) of 29 April 2014 (BGBl. I, 33/2014), in the version applicable to the case in the main proceedings (BGBl. I, 109/2022), 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:

…

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).

…’

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 Sky Österreich is an Austrian television company which offers, inter alia, a streaming service in Austria. The digital content provided for viewing via that service is located on a server to which customers are granted access from their device via a link or an application. They can then view, via the internet, the programmes included in their subscription, both ‘live’ and ‘on demand’. Downloads are also possible, depending on the respective user licences available. The digital content can be stored in the memory of the consumer’s own device and viewed offline. Downloads can be watched only once and must be viewed in full within 48 hours from the time the customer begins viewing.

13 Two subscription packages for streaming are available, namely the ‘Sport & Live TV’ package and the ‘Fiction & Live TV’ package. A subscription can be taken out online only if the customer accepts a contractual term by which that customer confirms that he or she has understood the information concerning the right of withdrawal and that he or she accepts that Sky Österreich will begin performance of the contract without waiting for the 14-day withdrawal period to expire and acknowledges that, as a result, he or she loses the right of withdrawal if he or she subscribes.

14 VKI, a consumer protection association, is of the view that the information thus provided to consumers on the right of withdrawal is insufficient. It claims that a streaming subscription constitutes a ‘digital service’ in respect of which the right of withdrawal is extinguished only once the service has been performed in full. Sky Österreich, on the other hand, contends that the streaming service constitutes ‘digital content’, with the result that – in accordance with Paragraph 18(1)(11) of the Federal Law on distance selling and contracts concluded off-premises, in the version applicable to the dispute in the main proceedings – the right of withdrawal is precluded from the time when performance of the contract begins.

15 VKI’s action seeking an order requiring Sky Österreich to refrain from using the contractual term referred to in paragraph 13 above in its business dealings with consumers was dismissed at first instance. However, VKI’s appeal was upheld and the judgment at first instance was varied, as the streaming service offered by Sky Österreich was classified as the supply of a ‘digital service’ for which the right of withdrawal could be extinguished only once the service has been performed in full.

16 Hearing an appeal on a point of law brought by Sky Österreich, the Oberster Gerichtshof (Supreme Court, Austria), which is the referring court, is uncertain as to the criteria to be applied in order to determine whether a streaming service such as that offered by Sky Österreich constitutes the supply of digital content or of digital services.

17 According to the referring court, the services provided by Sky Österreich are data produced and provided in digital form and therefore fall under the definition of ‘digital content’. That court observes that streaming designates only the data transmission process whereby the data can be viewed or listened to during transmission. Nevertheless, such services might also be regarded as the storage of and access to data in digital form and therefore constitute a ‘digital service’, a fortiori since they are not supplied in a single act, are generally combined with an update of the available content and with personal recommendations based on the behaviour of the user concerned, and the contract is generally intended to be of a certain duration.

18 In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following question to the Court of Justice 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 [application], 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?’

The request to have the oral part of the procedure reopened

19 By document lodged at the Court Registry on 10 March 2026, Sky Österreich requested that the oral part of the procedure be reopened, pursuant to Article 83 of the Rules of Procedure of the Court. In support of its application, Sky Österreich essentially states that it did not agree with certain factual and legal assessments in the Opinion of the Advocate General.

20 Under Article 83 of the Rules of Procedure, the Court may, at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information.

21 In that regard, it should, first, be noted that the Statute of the Court of Justice of the European Union and the Rules of Procedure make no provision for the interested parties referred to in Article 23 of the Statute to submit observations in response to the Advocate General’s Opinion (judgment of 26 February 2026, VIRUS and Others, C‑131/24, EU:C:2026:109, paragraph 34 and the case-law cited).

22 In accordance with the second paragraph of Article 252 TFEU, the Advocate General is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. It is therefore not an opinion addressed to the judges or to the parties which stems from an authority outside the Court, but rather, it is the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself. In those circumstances, the Advocate General’s Opinion cannot be debated by the parties. Furthermore, the Court is not bound either by the Advocate General’s submissions or by the reasoning which led to those submissions. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he or she examines in the Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure (judgment of 26 February 2026, VIRUS and Others, C‑131/24, EU:C:2026:109, paragraph 35 and the case-law cited).

23 Second, in the light of all the information available to it, the Court considers that it has sufficient information to rule on the present request for a preliminary ruling.

24 In those circumstances, the Court considers, after hearing the Advocate General, that there is no need to order the reopening of the oral part of the procedure.

Consideration of the question referred

25 As a preliminary point, it must be noted that although, in its question, the referring court refers to the provisions of Directive 2011/83 in the version in force before the amendments made to it by Directive 2019/2161, the grounds of the request for a preliminary ruling nevertheless take into account those amendments. In addition, in the order for reference the relevant national law is stated in a version which entered into force on 20 July 2022, and thus subsequent to the date set for the application of the provisions on transposition of Directive 2019/2161, in accordance with the second subparagraph of Article 7(1) thereof, namely 28 May 2022. Under those circumstances, the question referred must be assessed in the light of Directive 2011/83 as amended by Directive 2019/2161.

26 In the light of that clarification, it should be considered that, by its question, the referring court asks, in essence, whether Article 16(m) of Directive 2011/83, read in conjunction with Article 2(11) of that directive, must be interpreted as meaning that the supply of a streaming service by which a consumer can access, via a hyperlink or a digital application, digital data stored on a server for the purpose of viewing that data live, on demand, or offline after downloading them to the memory of their own device, constitutes the supply of ‘digital content’ within the meaning of those provisions.

27 In that regard, Articles 9 to 15 of Directive 2011/83 grant the consumer a right of withdrawal following the conclusion, inter alia, of a distance contract within the meaning of Article 2(7) of that directive and set out the conditions and arrangements for exercising that right (judgment of 31 March 2022, CTS Eventim, C‑96/21, EU:C:2022:238, paragraph 25).

28 Article 16 of that directive nevertheless sets out exceptions from that right of withdrawal, such as in the situation, referred to in point (m) of that article, of a contract for the supply of digital content which is not supplied on a tangible medium, provided however that the performance of that contract has begun and, moreover, where that contract puts the consumer under an obligation to pay, that that consumer has given his or her prior express consent to begin the performance during the withdrawal period, that that consumer has acknowledged that he or she will thus lose his or her right of withdrawal and that the trader concerned has provided confirmation in accordance with Article 7(2) or Article 8(7) of that directive.

29 In order to determine whether a streaming service such as the one at issue in the main proceedings concerns the supply of ‘digital content’ within the meaning of Article 16(m) of Directive 2011/83, it must be borne in mind that, according to settled case-law, it follows from the need for a uniform application of EU law and the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the European Union, having regard not only to the wording of that provision but also to the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, judgments of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 133 and the case-law cited, and of 30 April 2024, M.N. (EncroChat), C‑670/22, EU:C:2024:372, paragraph 109 and the case-law cited).

30 In view of the fact that Directive 2011/83 does not include any express reference to the law of the Member States for the purpose of determining the meaning and scope of the concept of supply of ‘digital content’ within the meaning of Article 16(m) of that directive, read in conjunction with Article 2(11) thereof, it must be held that those provisions must be given an independent and uniform interpretation in EU law, in accordance with the methodology referred to in the preceding paragraph of the present judgment (see, to that effect, judgments of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 188, and of 30 April 2024, M.N. (EncroChat), C‑670/22, EU:C:2024:372, paragraph 110).

31 As regards, in the first place, the literal interpretation of the concept of ‘digital content’, that concept is defined in Article 2(11) of Directive 2011/83 as meaning digital content as defined in Article 2(1) of Directive 2019/770. That latter provision refers to ‘data which are produced and supplied in digital form’.

32 In that regard, it appears that a streaming service such as the one at issue in the main proceedings indeed allows consumers to access digital data which are supplied to them by a trader in connection with their subscription. However, that fact alone is insufficient to find that such an offer necessarily concerns the supply of ‘digital content’ within the meaning of Article 16(m) of Directive 2011/83, read in conjunction with Article 2(11) thereof.

33 As concerns contracts concluded between consumers and traders in the context of the single digital market, Directive 2011/83 distinguishes between the concept of ‘digital content’ and that of ‘digital service’ which, as it follows from Article 2(16) of Directive 2011/83, read in conjunction with Article 2(2) of Directive 2019/770, is a service that either allows the consumer to create, process, store or access data in digital form or that allows the sharing of or any other interaction with data in digital form uploaded or created by that consumer or other users of that service. The supply of such a ‘digital service’ does not come under the exceptions from the right of withdrawal laid down in Article 16 of Directive 2011/83.

34 As it allows a consumer to access digital data and, as the case may be, store them, at least for a certain period of time, a streaming service such as the one at issue in the main proceedings is also liable to constitute such a ‘digital service’. The answer to the question referred therefore requires a contextual and teleological interpretation of the concept of ‘digital content’ in order to distinguish that concept, in the context of the case in the main proceedings, from the concept of a ‘digital service’.

35 As regards, in the second place, the contextual interpretation of the concept of ‘digital content’, it follows from recital 30 of Directive 2019/2161 that digital content relates to a single act of supply, consisting in supplying a consumer with a specific piece or pieces of such content, a series of individual acts of supply, or continuous supply over a period of time, including the supply of ‘specific music or video files’ and the ‘web-streaming of video clips …, regardless of the actual duration of the audiovisual file’.

36 Recital 19 of Directive 2011/83/EU provides a number of additional examples in that regard by listing ‘computer programmes, 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’. That recital refers also to a functional similarity between ‘contracts for digital content which is not supplied on a tangible medium’ and ‘contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity’ or contracts for the supply ‘of district heating’. Those latter two categories of contract are characterised, inter alia, by the fact that the consumer concerned acquires stable and continuous access, over the duration of the contract, to the subject matter of the contract.

37 As regards, by contrast, ‘digital services’, recital 30 of Directive 2019/2161 states that services such as ‘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’ are characterised by the continuous involvement of the service provider, which is why the EU legislature considered that the rules on the right of withdrawal provided for in Directive 2011/83 are applicable to them. That recital specifies, however, that both digital content and digital services can, in principle, involve continuous supply by the trader concerned over the duration of the contract.

38 In the light of all the foregoing considerations, it must be found that neither the technical method of transfer and of access to digital data nor the continuous nature of their supply are features which, by themselves, allow ‘digital content’ to be distinguished from a ‘digital service’.

39 Nevertheless, as observed, in essence, by the Advocate General in points 36 to 38 of his Opinion, it may be concluded from those considerations that a distinction must be drawn on the basis of the degree of involvement of the trader concerned during the supply of the digital data in question. Unlike the supply of ‘digital content’, the supply of a ‘digital service’ is necessarily defined by the dynamic nature of the offering proposed by the trader concerned, which goes beyond the mere stable and, as the case may be, continuous provision of specific content. That is the case, in particular, where, on the basis of a monitoring of the content which the consumer has accessed, playlists or lists of favourites, the offering is designed to adapt to the consumer’s individual behaviour or expectations, or to influence the manner in which the consumer uses the services concerned, for example by recommending specific content to the consumer.

40 That interpretation of those concepts fully takes into consideration the fact that Article 16(m) of Directive 2011/83 lays down an exception from the right of withdrawal and must, since it derogates from rules of EU law intended to protect consumers, be interpreted strictly (see, to that effect, judgments of 8 October 2020, PE Digital, C‑641/19, EU:C:2020:808, paragraph 43, and of 21 December 2023, BMW Bank and Others, C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 189 and the case-law cited). That finding is confirmed by recital 30 of Directive 2019/2161, which states that, where there is doubt as to whether a contract constitutes 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.

41 In the present case, it is apparent from the order for reference that, in the context of the streaming service at issue in the main proceedings, the provision of the appropriate infrastructure by the trader concerned is generally accompanied by an update of the offering and personal recommendations based on the behaviour of the user. The consumer concerned is not offered mere one-off access to a specific piece or pieces of content, but can access, at his or her discretion, a variety of content which may be continuously adjusted by that trader and is accompanied by technical features that are likely to influence the way in which that consumer makes use of the service offered.

42 In the third place, the interpretation adopted in paragraph 39 above is supported by an analysis of the objectives pursued by Directive 2011/83. As stated in recital 4 thereof, that directive is intended to strike the right balance between a high level of consumer protection, as referred to in Article 1 of that directive, and the competitiveness of enterprises (see, to that effect, the judgments of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 41, and of 8 October 2020, PE Digital, C‑641/19, EU:C:2020:808, paragraph 30).

43 The right of withdrawal provided for by Directive 2011/83 is intended to protect the consumer in the particular situation of a distance contract, in which that consumer does not have the possibility to fully and concretely ascertain the nature of the service concerned before concluding the contract. That 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 the consumer can examine and test the subject matter of that contract (see, to that effect, judgments of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 45; of 27 March 2019, slewo, C‑681/17, EU:C:2019:255, paragraph 33; and of 5 October 2023, Sofatutor, C‑565/22, EU:C:2023:735, paragraph 39).

44 In the present case, it is apparent from the order for reference that the streaming service at issue in the main proceedings features a wide variety of content, offered in the form of different subscriptions tailored to specific consumer profiles, and a dedicated infrastructure to access that content. Consumers wishing to subscribe to a streaming service such as the one at issue in the main proceedings are not necessarily able, from the time of conclusion of the contract, to acquaint themselves with all of that content and all of the characteristics and features on which the audiovisual experience offered by the trader concerned is based and to compare that offering effectively with other offerings on the market in order to decide whether, as the case may be, another offering might be better suited to their expectations.

45 Subject to verification by the referring court of the information referred to in paragraphs 39, 41 and 44 above, from which it can be concluded that Sky Österreich’s offering is of a dynamic nature and goes beyond the mere stable and continuous provision of specific content, it thus appears that the streaming service at issue in the main proceedings must be classified as a ‘digital service’ within the meaning of Article 2(16) of Directive 2011/83. Consequently, that streaming service cannot be considered as concerning the supply of ‘digital content’, within the meaning of Article 16(m) of that directive, read in conjunction with Article 2(11) thereof.

46 As regards, in the fourth place, the risk of abuse, invoked by Sky Österreich in its written observations, which would result from recognising a right of withdrawal on the part of the consumer concerned in the case of contracts concluded in relation to a streaming service such as that at issue in the main proceedings, it is true that the purpose of the exception from the right of withdrawal provided for in Article 16(m) of Directive 2011/83 is to protect the trader concerned from the disadvantages arising from the impossibility, in the event that the consumer exercises the right of withdrawal, of adequately restoring the status quo ante once the download or the streaming of digital content has begun.

47 Sky Österreich submits that, as regards the streaming service that it offers, all of the content is immediately accessible in full and most of the content – such as sports events, films and shows – are generally not of interest to consumers after the first viewing, with the result that many subscriptions are made for the exclusive purpose of viewing certain sports events or new seasons of television shows. In the event of withdrawal, a restoration of the status quo ante which takes due account of its economic interests must have regard to the actual use of the service by the consumer concerned and, consequently, is very difficult to implement from a technical and administrative perspective.

48 However, the making available of content covered by a streaming service subscription such as the one at issue in the main proceedings does not require that all of the services offered by the trader concerned in connection with that subscription must necessarily be provided in full from the time of the conclusion of the contract, as the possibility of viewing that content continuously and, as the case may be, repeatedly over the entire duration of the subscription is an integral part of that service. That is true irrespective of the trader’s potential ability to alter the content in question after the conclusion of the contract.

49 Furthermore, the first and second sentences of Article 14(3) of Directive 2011/83, stipulate that a consumer who exercises the right of withdrawal after requesting that the trader concerned perform a distance contract, during the 14-day withdrawal period provided for in Article 9 of that directive, must pay to that trader an amount, calculated on the basis of the total price agreed in that contract, which is in proportion to what has been provided until the time when that trader has been informed of the exercise of the right of withdrawal, in comparison with the full coverage of the contract. Under the first and second sentences of Article 14(3), that trader has the right to request appropriate compensation from the consumer.

50 In order to determine the proportionate amount to be paid by that consumer to the trader concerned where the consumer has expressly requested that the performance of the contract concluded should begin during the withdrawal period and then withdraws from that contract, the Court has held that it is appropriate, in principle, to take account of the price agreed in that contract for the full coverage of the contract and to calculate the amount owed pro rata temporis (see, to that effect, judgment of 8 October 2020, PE Digital, C‑641/19, EU:C:2020:808, paragraph 32).

51 However, as observed, in essence, by the Advocate General in points 56 and 57 of his Opinion, it cannot be inferred from the case-law reiterated in the preceding paragraph of the present judgment that – in a situation in which a consumer subscribes to a streaming service such as the one at issue in the main proceedings at a specific time with the sole purpose of being able to access, during the withdrawal period, specific content of an especially high value – the amount of compensation provided for in Article 14(3) of Directive 2011/83 should necessarily be calculated only on the basis of the period during which that consumer was able to access the content covered by the subscription before exercising his or her right of withdrawal. The amount of the compensation to be paid on the basis of that provision must be ‘in proportion to what has been provided’ in comparison with all of the services provided for under the contract. The trader concerned may therefore also determine the amount of compensation on the basis, inter alia, of the economic value of the content which, in the context of that consumer’s subscription, was made available to and viewed by that consumer during that period.

52 As it follows from the third sentence of Article 14(3) of that directive, the amount of compensation to be paid for that content must, where appropriate, be calculated on the basis of the market value of that content. For the purpose of the pro rata calculation of that amount, a trader may take into account, inter alia, the circumstances under which such content is offered and, in that context, the value of such content when it is offered, under the relevant market conditions, within the context of an on-demand service outside of any specific subscription.

53 In those circumstances, the recognition of a right of withdrawal on the part of the consumer when he or she concludes a contract for a streaming service is not liable to upset the balance between the interests of consumers and of traders within the meaning of the case-law reiterated in paragraph 42 above.

54 In the light of all the foregoing considerations, the answer to the question referred is that Article 16(m) of Directive 2011/83, read in conjunction with Article 2(11) of that directive must be interpreted as meaning that the supply of a streaming service by which a consumer can access, via a hyperlink or a digital application, digital data stored on a server in order to view them live, on demand, or offline after it has been downloaded to the memory of their own device, does not constitute the supply of ‘digital content’, within the meaning of those provisions, but rather the supply of a ‘digital service’, within the meaning of Article 2(16) of that directive, where the offering proposed by the trader concerned is of a dynamic nature which goes beyond the mere stable and, as the case may be, continuous provision of specific content.

Costs

55 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (First Chamber) hereby rules:

Point (m) of the first subparagraph of Article 16 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, read in conjunction with Article 2(11) of Directive 2011/83, as amended,

must be interpreted as meaning that the supply of a streaming service by which a consumer can access, via a hyperlink or a digital application, digital data stored on a server in order to view them live, on demand, or offline after it has been downloaded to the memory of their own device, does not constitute the supply of ‘digital content’, within the meaning of those provisions, but rather the supply of a ‘digital service’, within the meaning of Article 2(16) of that directive, where the offering proposed by the trader concerned is of a dynamic nature which goes beyond the mere stable and, as the case may be, continuous provision of specific content.

[Signatures]

* Language of the case: German.