§4.4 Confirmation of the contract

Article 8 7. The trader shall provide the consumer with the confirmation of the contract concluded, on a durable medium within a reasonable time after the conclusion of the distance contract, and at the latest at the time of the delivery of the goods or before the performance of the service begins. That confirmation shall include: (a) all the information referred to in Article 6(1) unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract; and (b) where applicable, the confirmation of the consumer’s prior express consent and acknowledgment in accordance with point (m) of Article 16. The trader should provide the consumer with a confirmation of the contract including all the information required under Article 6(1) unless this has already been provided on a durable medium, such as in a mail order catalogue, SMS or email, before the contract was concluded. The definition of a ‘durable medium’ was examined by the Court in case C-49/11 Content Services concerning the Distance Selling Directive 97/7/EC, which also required confirmation of a distance contract on a durable medium in Article 5(1). According to the Court’s ruling, a mere provision of information on a website does not constitute durable medium: ‘Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts must be interpreted as meaning that a business practice consisting of making the information referred to in that provision accessible to the consumer only via a hyperlink on a website of the undertaking concerned does not meet the requirements of that provision , since that information is neither ‘given’ by that undertaking nor ‘received’ by the consumer, within the meaning of that provision, and a website such as that at issue in the main proceedings cannot be regarded as a ‘durable medium’ within the meaning of Article 5(1).’ (118). At the same time, the Court did not exclude the possibility for certain websites to qualify as durable media if they met the requirements: ‘There is nothing in the file to indicate that the seller’s website, to which the link sent to the consumer connects, allows that consumer to store information which is personally addressed to him in such a way that he can access it and reproduce it unchanged during an adequate period without the seller being able to amend the content unilaterally.’ (119). The ‘durable medium’ concept was further analysed in case C-375/15 BAWAG, in relation to the Directive 2007/64/EC of the European Parliament and of the Council (120) on payment services which contained a similar definition of ‘durable medium’. The Court held that certain websites can be classified as ‘durable media’, subject to specific conditions: — the website allows the consumer to store information addressed to her/him personally in such a way that s/he may access it and reproduce it unchanged for an adequate period, without any unilateral modification of its content by the service provider or by another trader being possible; and — if the consumer is obliged to consult that website in order to become aware of the information, the transmission of that information must be accompanied by active behaviour on the part of the provider aimed at drawing the consumer’s attention to the existence and availability of that information on that website (121). Accordingly, a customer’s private online account with the trader where the trader uploads the information addressed to the consumer and cannot remove and change it unilaterally, could be considered a durable medium for the purposes of the Directive. If such an account is the trader’s only way of providing contract confirmation, its continued accessibility to the consumer should be ensured for an adequate period also after the consumer’s contract with the trader is terminated. As regards what constitutes ‘active behaviour’ for drawing attention to new communication, the CJEU confirmed in the BAWAG case that sending an email to the consumer’s personal mailbox can be sufficient, on condition that: (i) the respective mailbox is regularly used by the consumer to communicate with other persons and (ii) the parties agreed to use it in the respective service contract entered into between the trader and consumer. The address thus chosen may not, however, be the mailbox assigned to the consumer on the website managed by the trader (122). The trader should remain subject to the obligation under Article 8(7) to provide the confirmation of the contract on a durable medium also if pre-contractual information was provided to the consumer in accordance with Article 8(4). This obligation can be considered duly performed, inter alia, when, with the agreement of the consumer, the trader sends a confirmation of the contract by email. As regards the timing of the confirmation Article 8(7) requires it to be sent ‘within a reasonable time after the conclusion of the distance contract’. In addition, the confirmation has to be provided at the latest at the time of the delivery of the goods or before the performance of the service begins. For services, there is no requirement to provide the confirmation before the end of the withdrawal period (if the performance of the contract starts after this period ends). However, the requirement for the confirmation to be sent within a ‘reasonable time’ implies that it should be sent early enough to allow the consumer to exercise the right of withdrawal. Whether a belated confirmation should be regarded as unreasonable in the sense of Article 8(7) would have to be decided on a case-by-case basis. There is no explicit absolute deadline for the confirmation of contracts for the supply of public utilities and contracts for online digital content. By way of analogy, the rules on service contracts should apply to these contracts, i.e., the confirmation should be provided at the latest before the performance of the contract begins. This analogy seems to be reinforced by the common rules under the Directive regarding the calculation of the right of withdrawal period for these contracts in accordance with Article 9(2)(a) and (c). Contracts for online digital content are usually performed immediately, i.e., before the right of withdrawal period expires, and the most common means of confirmation is email. In this context a relevant question to ask is whether the traders concerned have to ensure that the consumer actually receives the confirmation by email before the download or streaming of the digital content begins, or whether it is enough that the trader sends such an email before performance of the contract starts. It should be noted here that Article 8(7) does not refer to ‘reception’ of the confirmation by the consumer; instead it requires the trader to ‘provide’ it. The meaning of the terms ‘provide’ and ‘receive’ in the context of the Distance Selling Directive 97/7/EC was considered by the CJEU in case C-49/11 Content Services. Article 5(1) of the Distance Selling Directive stated that the consumer must receive confirmation in writing or on another durable medium available and accessible to them in good time unless the information has already been given to them prior to conclusion of the contract in writing or on another durable medium. The Court noted in its judgment that the notions of ‘given’ and ‘received’ are different from the term ‘provided’, which are used in other provisions of the Directive and which the Court regarded as a ‘neutral’ formulation: ‘It should also be noted in that regard that, whereas the European Union legislature opted, in Article 4(1) of Directive 97/7/EC, in the vast majority of the linguistic versions, for a neutral formulation, according to which the consumer is to be ‘provided’ with the relevant information, it chose, by contrast, a term with greater implications for the business in Article 5(1) of that directive, according to which the consumer must ‘receive’ confirmation of that information. […]’ (123). It should also be acknowledged that the trader is not in control of the confirmation e-mail’s transmission process. In light of this, the requirements of Article 8(7) are met if the confirmation email is sent immediately before the digital content is supplied, i.e., before the streaming or download starts.

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