The ECJ has ruled in its judgment of 31.3.2022 that ticket retailers do not have to grant a right of withdrawal. They are to be treated in the same way as organisers, who can exclude the right of withdrawal when selling tickets for cultural and sporting events online. Buyers do not have a right of withdrawal when purchasing through a ticket retailer, provided that the economic risk of exercising the right of withdrawal would fall on the organiser (ECJ, judgment of 31.3.2022, ref: C-96/21).
Background
In November 2019, a consumer ordered tickets via an online booking platform operated by CTS Eventim, a ticketing service provider, to a concert organised by a third party. The concert, which was to have taken place in Braunschweig in March 2020, was subsequently cancelled due to the official restrictions on major events in connection with the Corona pandemic. The defendant sent the plaintiff a voucher issued by the organiser in the amount of 199.00 euros. This was done on behalf of the organiser with reference to the Corona voucher regulation according to Art. 240 § 5 EGBGB. However, the voucher, for the purchase price of the tickets, did not satisfy the consumer, so that he demanded repayment of the purchase price and the additional costs from CTS Eventim. The consumer thus impliedly declared the revocation of the contract concluded by way of distance selling. The question for the Bremen District Court, which was called upon by the consumer, was whether the consumer was entitled to revoke his contract with CTS Eventim in accordance with the Consumer Protection Directive. According to this directive, a consumer who has concluded a distance contract with a trader is in principle entitled to revoke the contract without giving reasons for a certain period of time. Pursuant to § 312g para 1 (BGB) German Civil Code, the consumer thus has a right of withdrawal pursuant to § 355 BGB in the case of contracts concluded away from business premises and in the case of distance contracts. However, according to § 312g para 2 no. 9 BGB, unless otherwise agreed by the parties, the right of withdrawal does not apply to contracts for the provision of services in the areas of accommodation for purposes other than residential purposes, transport of goods, car rental, supply of food and beverages, and the provision of other services in connection with leisure activities, if the contract provides for a specific date or period for the provision. The question for the AG Bremen is whether the consumer in the present case has a right of withdrawal according to § 312g para. 1 BGB (= Art. 9 Consumer Rights Directive) or whether this is excluded according to § 312g para. 2 no. 9 BGB (=Art. 16 lit. I) Consumer Rights Directive). This depends on whether the exception in § 312g (2) no. 9 BGB (=Art. 16 lit. I) Consumer Rights Directive) is limited to the direct provider of the service (organiser). For this reason, the Bremen District Court referred the following question to the ECJ for interpretation of Union law pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU): Is Article 16(I) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 (hereinafter the Consumer Rights Directive) to be interpreted as meaning that it is sufficient for the consumer’s right of cancellation to be excluded if the trader does not directly provide the consumer with a service relating to leisure activities but sells the consumer a right of access to such a service?
The ECJ’s decision
The ECJ held in the present case that under the terms of the contract between CTS Eventim and the organiser of the cancelled concert, the organiser is obliged to indemnify CTS Eventim against any liability in the event that a purchaser demands repayment of the price of a ticket. In the event that the contract at issue in the main proceedings is terminated as a result of the consumer’s cancellation, the reimbursement of the purchase price of the tickets purchased from CTS Eventim is therefore a matter for the concert organiser. In those circumstances, the ECJ considers that the assignment by CTS Eventim to the consumer of the right of access to the concert, the cancellation of which forms the basis of the main proceedings, constitutes a service relating to a leisure activity within the meaning of Article 16(l) of Directive 2011/83. Furthermore, the concert at issue, for which the right of access was assigned by CTS Eventim to the consumer, was to take place on a precise date. Against this background, the ECJ concludes that Article 16(l) of Directive 2011/83 must be interpreted as meaning that the exception to the right of withdrawal provided for in that provision may be relied on against a consumer who has concluded a distance contract with an intermediary acting in his own name but on behalf of the organiser of a leisure activity for the acquisition of a right of access to that activity ,
- in so far as, on the one hand, the lapse of the obligation towards the consumer to perform the contract by way of withdrawal in accordance with Article 12(a) of the directive would impose on the organiser of the activity in question the risk associated with the provision of the capacity thus released and, on the other hand, the leisure activity to which that right grants access is to take place at a specific time or during a specific period
- secondly, the leisure activity to which that right gives access is to take place at a specific time or during a specific period.
As in the case of a purchase directly from the organiser, there is therefore, according to the ECJ, also no right of withdrawal in the case of a purchase via an intermediary, provided that the economic risk of exercising the right of withdrawal would affect the organiser. Now it is the turn of the Bremen District Court to decide on the specific legal dispute and to reject the action of the consumer who wanted to hold the ticket platform harmless because he did not have a right of withdrawal against the organiser.