The ECJ has ruled in a case involving an Austrian company that a consumer who has placed a binding order does not have to pay even if he wrongfully withdraws from the contract The consumer’s right of withdrawal applies if – as is very often the case – there is a withdrawal clause in the company’s general terms and conditions, which provides the company with either a flat-rate cancellation fee or a withdrawal fee in the event of an unjustified withdrawal from the contract ” or alternatively and instead of the lump sum, entitled to compensation for the actual damage.

A consumer ordered a kitchen at a household trade fair and then withdrew from the contract without being entitled to do so. The kitchen studio referred to its terms and conditions, which read as follows:

 

In the event of an unjustified withdrawal from the contract by the consumer, the kitchen studio is entitled to a flat rate fee of 20% of the price. However, the kitchen studio is also entitled – at its own discretion – to claim the actual damage caused.

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