The German courts recently had to consider the answer to this question (amongst others). It’s important, as the Consumer Rights Directive states that a consumer shall have up to 14 days to withdraw from an off-premises contract and the trader must inform the consumer of this right of withdrawal.
A consumer ordered a product from a trader at a trade fair. The trader did not advise the customer of their right of withdrawal under German law. A consumer organisation argued that the contract was an off-premises contract and the trader should have informed the customer of their right of withdrawal.
What is an off-premises contract?
An "off-premises contract" means any contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader. It should also include situations where the consumer is personally and individually addressed in an off-premises context but the contract is concluded immediately afterwards on the business premises of the trader or through a means of distance communication. Purchases made during an excursion organised by the trader during which the products acquired are promoted and offered for sale should be considered as off-premises contracts.
What is classed as a business premises?
"Business premises" should include premises in whatever form (such as shops, stalls or lorries) which serve as a permanent or usual place of business for the trader. Market stalls and fair stands should be treated as business premises if they fulfil this condition. Retail premises where the trader carries out activities 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 activities in those premises on a usual basis. 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 business activities as well as private homes or workplaces should not be regarded as business premises.
What did the court say?
The German court referred the matter to the Court of Justice of the European Communities for a preliminary ruling. They found that the answer to the questions must be interpreted as meaning that a stand, as described in this case, run by a trader at a trade fair, at which he carries out his activity for a few days each year, constitutes ‘business premises’ within the meaning of the legislation 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 his activity there and will solicit him in order to conclude a contract. The court confirmed that this is for the national court to ascertain.
Read the full case here. PS the English language version provides the provisional text only.