§1.2 The notion of ‘contract’

The triggering factor for the application of the Directive is the offer to conclude a contract between a trader and a consumer. The Directive does not define ‘the contract’ and does not determine the circumstances when a contract to which the Directive applies is deemed to have been concluded. It is for the national courts and enforcement authorities in the Member State concerned to assess whether a legal relationship constitutes a ‘contract’. According to its Article 3(5): Article 3 5. This Directive shall not affect national general contract law such as the rules on the validity, formation or effect of a contract, in so far as general contract law aspects are not regulated in this Directive. For example, the Directive is without prejudice to national contract law rules on the transfer of contractual rights and obligations from one consumer to another. It should be noted that a single contract can cover multiple items, both goods and digital content items. For example, depending on its terms, a single subscription contract may cover the supply of a range of digital content. If covered by a subscription contract, each supply of individual digital content under that contract would not, accordingly, constitute a new contract for the purposes of the Directive. In C-922/19 Stichting Waternet (14) , the Court dealt with the question whether the continued supply of water to a dwelling in the case of change of occupancy without the new occupant’s express request constitutes ‘inertia selling’ in the meaning of point 29 of the UCPD Annex I (‘blacklist’), resulting in a right for the consumer not to pay for such supply in accordance with Article 27 of the CRD. The case required, inter alia, a determination whether a contract may be regarded as concluded between a water supply company and a consumer, in the absence of that consumer’s express consent. The Court recognised that the supply of water may not always require the existence of a contract. It is also possible for the legal relationship between the respective supplier and consumer to be regulated entirely by national legislation, concerning both the supply of water by [that] trader and the costs associated with that supply payable by the consumer (15). In such a case where there is no contract, the Directive would not apply to the relationship between the supplier and consumer. In any event, it remains decisive whether the respective relationship is regarded as ‘contract’ under the applicable national law.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07