Leisure as an exception to the right of withdrawal

Leisure as an exception to the right of withdrawal

On many occasions, companies consider whether they can, for the benefit of their users, exercise some kind of exception to the right of withdrawal, which allows users to renounce certain services without being harmed by it.

In this case, we will analyze whether so-called “leisure” activities are subject to this right or whether, on the contrary, a service provider can make use of an exception.

What is the right of withdrawal?

The right of withdrawal is defined as “the possibility for the consumer or user to withdraw from the contract by notifying the other party within the established period, without having to justify the decision and without penalty of any kind”.

Like any right, the right of withdrawal is not absolute, but has certain limitations and exceptions, and must be carried out under certain conditions, depending on the case, which, if not met, may lead to its non-estimation or the possibility of its exercise by the consumer or user.

One of these exceptions is reflected in Article 103 l) of Royal Legislative Decree 1/2007, of 16 November, which approves the revised text of the General Law for the Defence of Consumers and Users and other complementary laws, which indicates that “the supply of accommodation services for purposes other than as a dwelling, transport of goods, car rental, food or services related to leisure activities, if the contracts provide for a specific date or period of performance” is exempted from this right.

The right of withdrawal in leisure activities

The question of whether the exception to the right of withdrawal is enforceable against a consumer has been accepted and resolved positively by the Court of Justice of the European Union in its judgment of 31 March 2022 in case C-96/21.

The Court of Justice of the European Union states in its judgment that the exception to the right of withdrawal provided for in Article 16(l) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, which is transposed into national law in the General Law for the Protection of Consumers and Users through Article 103 (l), which is transcribed identically.

In that judgment, the CJEU states that the question ‘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, with an intermediary acting in his own name but on behalf of the organizer of a leisure activity, a distance contract relating to the purchase of a right of access to that activity, provided that, on the one hand, the termination by withdrawal, in accordance with Article 12(a) of that directive, places the obligation to perform that contract on the organizer of the leisure activity concerned, the termination by withdrawal, in accordance with Article 12(a) of that directive, of the obligation to perform that contract in respect of the consumer results in the organizer of the activity in question bearing the risk arising from the reservation of the seats thus released and, second, the leisure activity to which that right of access gives access is to take place on a specific date or during a specific period’.

In view of the above, taking into account, firstly, that no right is absolute, and the right of withdrawal does not escape this condition and, secondly, considering the case law of the CJEU, it can be indicated that, provided that the relevant conditions are met, service providers of activities included in the leisure sector may invoke the exception to the right of withdrawal.

At Letslaw by RSM, as digital lawyers, we are specialists in consumer and user law, and we can help you clarify any doubts that may arise in the day-to-day running of your business.