The right of withdrawal in online services: what every service provider needs to know
Contracts concluded online fall under a strict consumer regime
A day nursery concludes a childcare agreement through its website. An estate agent sends its brokerage agreement by email. A contractor confirms the assignment digitally after a telephone conversation. In all of these cases there is a distance contract: it is formed exclusively through means of distance communication, without the trader and consumer being physically present at the same time. Such contracts are governed by Division 9B of Title 5, Book 6 DCC, the core of which is this: the consumer has the right to withdraw from the contract without giving reasons within fourteen days.
Whether a distance contract has been concluded is not always self-evident. A single in-person conversation may be enough to fall outside the regime — but only if the contract was discussed in substance during that conversation. A tour or viewing is not enough. The District Court of Noord-Holland and the Court of Appeal of The Hague reached opposite outcomes in 2024 in comparable childcare cases: in Noord-Holland only a tour had been given on site and the contract was concluded entirely digitally — a distance contract after all. In The Hague the contract and general terms and conditions had been discussed in substance during the visit — not a distance contract.
Failing to inform about the right of withdrawal has far-reaching consequences
A party who concludes a distance contract with a consumer is required to actively inform that consumer of the right of withdrawal — before the contract is concluded, on a durable medium, step by step. Inclusion in the general terms and conditions is not sufficient. A reference to a page on the website is not sufficient. That is the core of Section 6:230m(1)(h) DCC. The consequence of non-compliance is automatic: the fourteen-day period is extended to twelve months and fourteen days.
This is not merely a theoretical risk. The Supreme Court held on 12 November 2021 (ECLI:NL:HR:2021:1677, Arvato I) that the court must assess of its own motion whether the trader has complied with the information duties — even if the consumer does not appear and does not invoke them. A service provider who commences debt-collection proceedings therefore runs the risk that the court will reduce its claim of its own motion. The LOVCK Sanctions Model, in the version of 6 February 2025, provides for reductions of twenty to sixty per cent of the principal sum where essential information duties are breached. In 2021 the District Court of Noord-Holland applied a reduction of twenty-five per cent to a childcare provider that produced only a single screenshot as evidence of compliance (ECLI:NL:RBNHO:2021:2930).
Where the consumer actually invokes the right of withdrawal, the consequence becomes more complete. The Court of Justice of the EU held on 17 May 2023 (ECLI:EU:C:2023:413) that in that case the consumer owes no compensation whatsoever for services already received. The case concerned a contractor who had renovated a complete electrical installation. The consumer had not been informed, exercised the right of withdrawal within the extended period, and had to pay nothing. A claim based on unjust enrichment is likewise not possible. The District Court of Amsterdam applied this line on 14 November 2023 and dismissed the day nursery's entire claim (ECLI:NL:RBAMS:2023:7103). The work had been carried out, the service had been supplied — it makes no difference.
For contractors there is one nuance. The Consumer Rights Directive does not apply to contracts for the construction of new buildings or the substantial conversion of existing buildings (Section 6:230h(2)(f) DCC). A party falling under that exception has no right of withdrawal to provide. But the threshold is extremely high: the conversion must be comparable to constructing an entirely new building — recital 26 of the Directive gives the example of a building of which only the façade remains. Ordinary renovations expressly fall outside it, even substantial ones. A new kitchen, a bathroom, an electrical installation, an extension: the Directive simply applies. Only where a conversion in fact amounts to new construction does the exception apply — and on this point there is as yet barely any guidance in Dutch case law.
So what does work for service providers who want to start straight away?
Service providers who believe their work is too personal or too specific to fall under the right of withdrawal are mistaken. Section 6:230p(f) DCC — the implementation of Article 16(c) of Directive 2011/83/EU — excludes the right of withdrawal for the supply of goods made to the consumer's specifications. But that exception concerns goods, not services. The Court of Justice of the EU made this clear on 14 May 2020 in relation to an architect's contract (C-208/19, ECLI:EU:C:2020:382). The architect delivered plans on paper — tangible items, produced to the consumers' wishes — and relied on the made-to-order exception. The Court looked not at what was delivered, but at the main subject matter of the contract: was it a good or a service? Designing is an intellectual service; the drawings are subordinate to it. The contract is therefore a services contract, and sub-paragraph (f) does not apply. Exceptions to the right of withdrawal are interpreted restrictively. For a service provider who contracts online — lawyer, architect, estate agent, adviser — the made-to-order route is not open, however personalised the assignment.
There is one instrument that does work: the express waiver under Section 6:230p(d) DCC. Two requirements are cumulative: the consumer expressly consents to performance beginning before the cooling-off period expires, and declares that they waive the right of withdrawal once the service has been fully performed. Both requirements must be recorded demonstrably. A standard clause in the general terms and conditions is not sufficient — on 5 October 2021 the District Court of Overijssel dismissed a mortgage adviser's entire claim because mere inclusion in the contract is insufficient (ECLI:NL:RBOVE:2021:3886). A separate checkbox in the ordering process is the minimum: I agree to immediate performance and waive my right of withdrawal once the service has been fully performed.
Frequently asked questions
When is a services contract concluded at a distance?
A contract is concluded at a distance if it is formed exclusively through a website, email or telephone, without the simultaneous physical presence of trader and consumer. An in-person conversation in which the contract is discussed in substance may be enough to fall outside the regime; a tour or viewing alone is not sufficient for that.
Does the made-to-order exception also apply to personalised services?
No. Whether the exception in Section 6:230p(f) DCC applies depends on the main subject matter of the contract. If that is a service — even where something tangible is delivered — then sub-paragraph (f) does not apply. In 2020 the Court of Justice of the EU held that an architect who delivers bespoke plans performs a service; the drawings are merely subordinate to that main service (C-208/19, ECLI:EU:C:2020:382). However personalised the assignment, the made-to-order route is not open.
What sanction applies where the information duty is breached but the consumer does not withdraw?
The court may reduce the claim of its own motion by twenty to sixty per cent under the LOVCK Sanctions Model (version of 6 February 2025), depending on the number of information duties breached. The consumer need do nothing for this — the court assesses of its own motion, including in default proceedings.
Sources: Supreme Court 12 November 2021, ECLI:NL:HR:2021:1677 (Arvato I) | CJEU 14 May 2020, ECLI:EU:C:2020:382 (C-208/19) | CJEU 17 May 2023, ECLI:EU:C:2023:413 | District Court of Noord-Holland 16 March 2022, ECLI:NL:RBNHO:2022:6541 | District Court of Amsterdam 14 November 2023, ECLI:NL:RBAMS:2023:7103 | District Court of Overijssel 5 October 2021, ECLI:NL:RBOVE:2021:3886 | District Court of Noord-Holland 23 October 2024, ECLI:NL:RBNHO:2024:13499 | Court of Appeal of The Hague 2024, ECLI:NL:GHDHA:2024:836
Cited case law
Supreme Court: ECLI:NL:HR:2021:1677
Courts of Appeal: ECLI:NL:GHDHA:2024:836
District Courts: ECLI:NL:RBNHO:2024:13499 · ECLI:NL:RBNHO:2021:2930 · ECLI:NL:RBAMS:2023:7103 · ECLI:NL:RBOVE:2021:3886 · ECLI:NL:RBNHO:2022:6541