The right of withdrawal from distance contracts is a contentious issue in private construction law. While a recent judgment by the European Court of Justice dated March 5, 2026 – C-564/24 – strengthens the position of contractors, the risk of withdrawal should still not be underestimated.
Case Overview
The decision focused on a consumer who, with the support of an architect, concluded a contract for scaffolding work exclusively by email and post. No information on the right of withdrawal was provided. After full performance of the contract, the consumer withdrew from the contract and demanded repayment of all amounts already paid. The contractor considered this to be an abuse of the right of withdrawal.
Key Clarifications by the ECJ on the Right of Withdrawal
The ECJ clarified three key aspects:
1. Distance Contract Even Despite Third-Party Assistance
Even if a client is advised or represented by an architect or other professional, a contract for construction services can be qualified as a distance contract—provided it is concluded exclusively via means of distance communication (e.g. email, post). Assistance by a third party does not exclude the right of withdrawal.
2. Amendment Agreements May Constitute Distance Contracts
If, after the main contract, a supplemental agreement (e.g. for additional services or amendments) is concluded exclusively by means of distance communication, this amendment may also constitute a separate distance contract—meaning that a separate right of withdrawal applies.
3. Protection Against Abusive Exercise of the Right of Withdrawal
If the consumer exercises the right of withdrawal only after complete performance and seeks to obtain an advantage at the contractor’s expense (e.g. use of scaffolding while reclaiming all payments), the right of withdrawal may be deemed abusive. In such cases, the building contractor is not obliged to refund the payments received. The right of withdrawal is excluded.
However, the burden of proof for an abusive exercise is high, and the court must consider all facts and circumstances of the individual case in its assessment. It must be evident from the totality of the objective circumstances that the exercise of the right of withdrawal does not serve the protective purpose of EU law. Subjectively, it must be proven that the consumer is exercising the right of withdrawal specifically for the purpose of obtaining an advantage at the contractor’s expense.
Circumstances such as the consumer’s own drafting of the contract, the exercise of the right of withdrawal shortly before the end of the withdrawal period, or the fact that the withdrawal is declared after complete performance without any willingness to provide consideration, may indicate the existence of an abuse.
Impact of the ECJ Judgment in Practice
The judgment contributes to greater fairness in business transactions. Although the law provides that, in the absence of proper information on the right of withdrawal, the right of withdrawal is extended to up to one year and the consumer may withdraw from the contract without providing any consideration, the ECJ sets limits with this decision. Contractors need not fear that consumers will use the right of withdrawal as a “free pass” to obtain services for free. Consumer protection is nevertheless upheld. To avoid such disputes, it’s important to provide proper instructions regarding the right of withdrawal.
