§5.6.1 Consumer’s consent to immediate performance

Article 7(3) and Article 8(8) of the CRD lay down formal requirements applicable when consumers wish to start the performance of off-premises and distance service contracts or contracts for public utilities before the expiry of the right of withdrawal period. The two provisions are presented in identical terms, except that Article 7(3) requires the trader to obtain the consumer’s request for immediate performance on a durable medium: Article 7(3) and Article 8(8) Where a consumer wants the performance of services, or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating to begin during the withdrawal period provided for in Article 9(2), and the contract places the consumer under an obligation to pay, the trader shall require that the consumer make [such] (*1) an express request [on a durable medium] (*1) and request the consumer to acknowledge that, once the contract has been fully performed by the trader, the consumer will no longer have the right of withdrawal. These provisions therefore apply if the consumer wants the service or public utilities to start during the withdrawal period. However, these rules should not prevent the trader from actively proposing that the consumer make such a request. At the same time, the trader is not obliged either to offer this option or to accept the consumer’s request. Article 14(3) allows the consumer to withdraw from the provision of services or public utilities even after making an express request. This is also confirmed in Recital 50: ‘the consumer should benefit from his right of withdrawal even in case he has asked for the provision of services before the end of the withdrawal period.’ However, in relation to service contracts, under point (a) of the first paragraph of Article 16, the consumer loses the right of withdrawal when the service is fully performed, subject to certain conditions: Article 16 ‘Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance and off-premises contracts as regards the following: (a) service contracts after the service has been fully performed but, if the contract places the consumer under an obligation to pay, only if the performance has begun with the consumer’s prior express consent and acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader;’ Articles 7(3) and 8(8) of the CRD were amended by Directive (EU) 2019/2161. The amendment ensured alignment with point (a) of the first paragraph of Article 16. Namely, Article 7(3) and Article 8(8) now contain the same two requirements as point (a) of the first paragraph of Article 16: (1) consumer’s request for immediate performance, and (2) consumer’s acknowledgement that, once the contract has been fully performed by the trader, the consumer will no longer have the right of withdrawal. The amendments also clarified that these requirements only apply to paid-for services. This was necessary in the context of the extending the scope of the CRD in the area of digital services under Article 3(1a) (131). The trader’s failure to comply with the requirement to obtain the consumer’s request for immediate performance leads to consequences provided in Article 14(4)(a), i.e. consumer’s right not to bear the cost of the service or public utilities – see further section 5.8. The consumer’s ‘express consent’ in point (a) of the first paragraph of Article 16 should be interpreted as the ‘express request’ required under Articles 7(3) and 8(8). By analogy with the rules on additional payments under Article 22, the terms ‘express request/consent’ in this context should be interpreted as implying a positive action by the consumer, such as ticking a box on the website. The use of a pre-ticked box or of a clause in the general terms and conditions for this purpose would not satisfy these requirements (132). The consumer’s express consent and acknowledgement can be acquired before, during, or after the contract is concluded, as long as it happens before the performance starts. The consumer’s request and acknowledgement can be expressed in one go. The requirements of Articles 7(3) and 8(8) and of point (a) of the first paragraph of Article 16 could be fulfilled, for example, by the following formula: — […] I hereby request [immediate performance or performance on/as from specific date during the withdrawal period] of the service contract and acknowledge that I will lose my right of withdrawal from the contract once the service contract is fully performed. For off-premises contract subject to Article 7(3), the requirement for ‘durable medium’ would be satisfied where the consumer’s request and acknowledgement is recorded on an instrument which enables the parties to store the information in a way accessible for future reference and which allows the unchanged reproduction (see section 4.4 for more information). In general, checking a box by the consumer on the order document is sufficient if the request and acknowledgment is adequately reproduced in the copy provided to the consumer.

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