§2.1 Contracts concluded outside the trader’s business premises

Off-premises contracts are defined in Article 2(8) as follows: Article 2 (8) ‘off-premises contract’ means any contract between the trader and the consumer: (a) concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader; (b) for which an offer was made by the consumer in the same circumstances as referred to in point (a); […] Business premises are defined in Article 2(9) as follows: Article 2 (9) ‘business premises’ means: (a) any immovable retail premises where the trader carries out his activity on a permanent basis; or (b) any movable retail premises where the trader carries out his activity on a usual basis; Recital 22 provides several examples of what should be regarded as ‘business premises’. On the one hand, the concept would cover ‘shops, stalls or lorries, as well as market stalls and fair stands, when they serve as a permanent or usual place of business for the trader’. Similarly, retail premises where the trader carries out his activity on a seasonal basis, for instance during the tourist season at a ski or beach resort, should be considered as business premises as the trader carries out his activity in those premises on a usual basis. On the other hand, spaces accessible to the public, such as streets, shopping malls, beaches, sports facilities and public transport, which the trader uses on an exceptional basis for his business activities are not business premises. Private homes or (consumers’) workplaces also should not be regarded as business premises. Contracts concluded during the trader’s visit to the consumer’s home or place of work are off-premises contracts irrespective of whether the visit was requested by the consumer or not. Such off-premises contract can be preceded by preparatory steps: — For example, a visit of the trader’s representative (technician) to the consumer’s residence to sell and install at the same time a piece of equipment or device will be an off-premises service contract, regardless of the fact that the consumer had previously requested (booked) such a visit after a personal visit to the trader’s shop. — In contrast, if the contract was actually concluded during the customer’s visit to the shop or by distance means of communication, the subsequent visit of the technician to install the necessary equipment at the consumer’s residence would not change the qualification of the contract into off-premises contract. In case C-485/17 Verbraucherzentrale Berlin (45) the Court confirmed that the expression ‘on a usual basis’ within the meaning of Article 2(9)(b) must be understood as referring to the fact that the activity at issue being carried out on the premises in question is a ‘normal activity’. The application of this concept requires a case-by-case assessment, taking into account in particular the type of goods or services sold and the commercial practice of the specific trader. More specifically the Court addressed the situation of a stand run by a trader at a trade fair, at which they carry out their activity for a few days each year. It ruled that such a stand constitutes ‘business premises’ if, in the light of all the factual circumstances surrounding that activity, in particular the appearance of the stand and the information relayed on the premises of the fair itself, a reasonably well-informed and reasonably observant and circumspect consumer could reasonably assume that the trader is carrying out its activity there and will solicit him or her in order to conclude a contract (46). Furthermore, the Court acknowledged the continued relevance of its earlier conclusions in case C-423/97 Travel-Vac, S.L. on the interpretation of the former Council Directive 85/577/EEC. In that judgment, the Court specifically stated that: ‘As regards the question whether the contract was concluded away from the trader’s business premises, it must be observed that this concept refers to premises in which the trader usually carries on his business and which are clearly identified as premises for sales to the public .’ (47). Accordingly, if the trader uses premises for selling goods and services that are not ‘normally used’ for such purpose and that are not clearly identified as premises for selling to the public, the contracts concluded with consumers are likely to be off-premises contracts. — For example, sale of goods during events (conventions, seminars, parties, etc.) organised at restaurants, cafes or hotels rented for the purpose of the respective event are likely to be off-premises contract. The classification of a contract as off-premises contract depends on the circumstances of the conclusion of the contract. A trader will be aware of the nature of his activity and should act according to the rules governing either on-premises or off-premises contracts. Any disputes as to whether, for example, the right of withdrawal was applicable because the contract should have been considered an off-premises contract, will have to be assessed on a case-by-case basis.

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