Right of withdrawal

All statements refer to Austrian law.

Due to the EU Consumer Rights Directive, a right of withdrawal for consumers in distance selling transactions exists in all EU member states. The EU Directive applies only to contracts between traders and consumers (B2C) and gives the consumer certain rights, which, unless otherwise provided in the individual provisions of the Directive, fully harmonized are. This means that, in principle, individual member states cannot provide for stricter or less stringent regulations. In Austria, the Consumer Rights Directive has been implemented primarily in the form of the Distance and Out-of-Home Transactions Act (FAGG). Some provisions were inserted directly into the Consumer Protection Act (KSchG).

The Directive does not apply to B2B transactions. There is therefore no such statutory right of withdrawal in the B2B area.

Rescission or revocation?

Both terms mean the same thing. While the Consumer Rights Directive uses the internationally common term “withdrawal”, the Austrian FAGG speaks of “rescission”. This becomes noticeable with the model cancellation policy and the model cancellation form, both of which have been published in an annex to the FAGG. While the FAGG itself speaks of “withdrawal”, the models use the term “revocation”. The reason for this is that the designs should also be able to be used in Germany.

How long can the consumer withdraw(§ 11 Abs 1 FAGG)?

The withdrawal period for distance contracts (not only online stores) is 14 calendar days. Withinthis period, therefore, the consumer may withdraw from such contracts without giving any reason and largely without incurring any costs.

Attention:
The 14-day withdrawal period applies fully harmonized EU-wide! It can therefore by law neither a longer nor a shorter withdrawal period is provided for. Contractual this period can of course already be extended, but in no case shortened.

 

When does the withdrawal period begin (§ 11 para 2 FAGG)?

In the case of sales contracts, from the day on which the consumer or a third party not acting as a carrier and designated by the consumer has acquired physical possession of the goods

or

  • if the consumer or this third party has ordered several goods as part of a single order, which are delivered separately, with the day of receipt of the last goods,
  • in the case of delivery of goods in several partial consignments or pieces, on the day on which the consumer or this third party comes into possession of the last partial consignment or piece,
  • in the case of contracts for the regular delivery of goods over a fixed period of time (e.g. magazine subscription), with the day on which the consumer or this third party comes into possession of the first goods.

In the case of contracts for the supply of water, gas, electricity (in each case in unlimited volume or quantity) or district heating, from the date of conclusion of the contract.

The day of the beginning of the period (receipt of the goods) is not to be counted.

Attention:
The regulations also apply if the subject of the contract is both a supply of goods and services. The period therefore also begins in this case with the receipt of the goods by the consumer.

Attention:
The consumer can declare the withdrawal already before, namely from his own contractual declaration (order), and does not have to wait for the entrepreneur to accept this order; only with the acceptance of this order the contract is concluded.

 

Can the deadline be extended (§ 12 FAGG)?

The withdrawal period is automatically extended at 12 months, if the entrepreneur does not fulfil his on the right of withdrawal pursuant to Section 4 (1) 8 FAGG (information on the existence, conditions, deadlines and procedure for exercising the right of withdrawal, including the provision of the statutory model withdrawal form). The extended withdrawal period is therefore 12 months and 14 days. If the instruction is made up within the 12 months, the period ends 14 days after receipt of this information.

What must be instructed about with regard to the right of withdrawal?

In the event of the existence of the right of withdrawal, the entrepreneur must inform the consumer of this by providing the model withdrawal form on

  • the fact that a right of withdrawal exists
  • the conditions of the right of withdrawal
  • the deadlines of the right of withdrawal and
  • how to proceed when asserting the right of withdrawal.

If the entrepreneur wants to charge the costs of the return of goods to the consumer in case of withdrawal, he also has to inform about this obligation to bear the costs. If the goods are not usually sent by post due to their nature, the specific amount of the return costs must also be stated. If there is no right of withdrawal at all (see below, “No right of withdrawal also exists in the case of”), it must even be informed of this.

When and how must I be informed about the right of withdrawal (§§ 4 and 7 FAGG)?

The information (as well as the provision of all other information pursuant to Section 4 (1) FAGG) must be provided in any case before the conclusion of the contract or the contractual declaration (order) of the consumer. This in a clear and comprehensible form in a manner adapted to the specific means of remote communication chosen. At this stage, simply providing the information (e.g., on the website) is sufficient. However, the information can already be provided at this point (readable!) on a permanent data carrier.

These information obligations of the entrepreneur are also fulfilled if the entrepreneur has correctly completed the statutory model cancellation policy and sent it to the consumer. The consumer must also be provided with a sample withdrawal notice. The model cancellation policy as well as the model cancellation policy have been published in the Federal Law Gazette as an annex to the FAGG (see annexes 1 and 2 in this document).

Subsequently, the entrepreneur must provide the consumer – within a reasonable period of time after the conclusion of the contract, at the latest at the same time as the delivery of the goods – with a confirmation of the concluded contract including instructions on withdrawal and numerous other information (cf. Section 4 (1) FAGG) on a durable medium. This can be omitted if this information, as just described, has already been provided to the consumer in advance on a durable medium.

Attention:
The website itself is not considered to be a permanent data carrier, since the website can be changed at any time. However, a confirmation e-mail fulfills the requirements.

More information on the information requirements of Section 4 FAGG: “E-Commerce: Special information requirements in distance selling B2C“.

Are there exceptions to the right of withdrawal from the purchase of goods?

Generally excluded are B2B transactions, i.e. transactions between entrepreneurs.

No Right of withdrawal also exists in case of (§ 18 FAGG)

  1. Goods whose price depends on financial market fluctuations that may occur within the withdrawal period;
  2. Goods made to customer specifications or tailored to the personal needs of the customer;
  3. quickly perishable goods or those whose expiration date is quickly exceeded;
  4. alcoholic beverages that can be delivered only after 30 days and when their price depends on market fluctuations;
  5. Newspapers, periodicals or magazines (excluding subscriptions);
  6. public auctions (E-Bay is not a public auction; here there is a right of withdrawal)

Attention:
As mentioned above, the consumer must also be informed about the non-existence of the right of withdrawal before the conclusion of the contract or his contractual declaration in a manner adapted to the means of distance communication.

The right of withdrawal exists in principle, but does not apply in the case of § 18 (1) (5), (6) and (8) of the FAGG.

  1. sealed goods that are not suitable for return for reasons of health protection or hygiene if their seal has been removed;
  2. Goods which, due to their nature, have been inseparably mixed with other goods after delivery (e.g. delivery of heating oil into a tank which has already been partially filled);
  3. Sound or video recordings or computer software delivered in a sealed package, provided that the seal has been removed after delivery;

Attention:

In these cases, it must be instructed that there is first a right of withdrawal and the model withdrawal form must be provided. Only if the goods have been unsealed or mixed, the right of withdrawal does not apply. This must also be instructed.

Suggested wording (example):
“For audio or video recordings such as CDs, DVDs as well as for computer software delivered in a sealed package, the right of withdrawal (right of revocation) does not apply if the goods have been unsealed after delivery.”

 

How must the withdrawal be declared (§ 13 FAGG)?

The withdrawal can be declared by the consumer using the statutory model withdrawal form (see Appendix 2) or with a corresponding clear declaration in any other form (e.g. SMS, telephone). Therefore, the declaration does not have to be in writing. In any case, the consumer’s declaration must clearly indicate the intention to withdraw. The mere uncommented return of the goods is in any case not sufficient. For the timeliness of the withdrawal, the dispatch within the withdrawal period is sufficient. However, it is up to the consumer to prove that the withdrawal was made in time.

The Entrepreneur may also give the Consumer the option to electronically fill in the model withdrawal form or another corresponding clear declaration on its website (see the related option in Annex 1). In this case, the entrepreneur must immediately confirm to the consumer the receipt of such a revocation declared on a durable medium.

What are the obligations of the entrepreneur in case of withdrawal (§ 14 FAGG)?

If the consumer withdraws from the contract, the entrepreneur shall immediately pay the consumer all payments made by the consumer, including any delivery costs, at the latest within 14 days from the date of withdrawal. receipt ofthe notice of withdrawal. However, if the consumer has opted for a different (more expensive) delivery method than the one offered by the entrepreneur as standard, these additional costs are not to be reimbursed.

It is equal to refund, so if the consumer has paid with money, he must get money back.

The consumer has to bear the costs of returning the goods if the entrepreneur informed him about this before the conclusion of the contract or before the consumer’s contractual declaration (see above, Information obligations).

Attention:
If it is a purchase contract for goods that are not usually sent by mail, as mentioned above, the specific amount of the return shipping costs must already be informed originally.

In general, however, the entrepreneur can refuse repayment until either he has received the goods or the consumer proves to him that the goods have been returned.

What are the obligations of the consumer in case of withdrawal (§ 15 FAGG)?

Conversely, the consumer must return the goods to the entrepreneur without delay, at the latest within 14 days from the date of submission of the declaration of withdrawal. It is sufficient if the goods are dispatched within the relevant period.

The return costs are borne by the consumer, unless he was not informed about it accordingly.

May a reduction in value be deducted for the use of the goods (§ 15 Abs 4 FAGG)?

The consumer shall only be liable to pay compensation for diminished value if this is due to handling of the goods that is not necessary for inspecting the goods for their condition, properties and function. Mere removal from the packaging, first commissioning to determine the serviceability, etc. therefore do not entail any obligation on the part of the consumer to pay compensation. Only depreciation in value in excess of this is to be compensated.

Attention:
In the absence of timely notification of the right of withdrawal, the consumer pays nothing for the loss of value in any case.

Can the consumer be obliged to make other payments (§ 15 para 5 FAGG)

No, apart from the described payment obligations, no burdens can be imposed on the consumer in connection with the withdrawal.

Are there any effects on contracts associated with the purchase contract (§ 17 FAGG)?

If the consumer permissibly withdraws from the purchase contract, the withdrawal shall automatically also apply to related contracts, such as insurance contracts; the consumer shall not incur any additional costs as a result.


Appendix 1: Sample cancellation policy purchase contract (source: Appendix I A to FAGG)

Note on usage:

The Sample revocation instructions reflect the text of the law. The use of the samples is not obligatory; therefore, formulations deviating from the sample may be used.

However, the unchanged use of the statutory model has a decisive advantage: If the statutory text is used, the information obligation regarding revocation (§ 4 para 1 lines 8,9 u 10 FAGG) is deemed to be fulfilled in any case (§ 4 para 3 FAGG). Unfortunately, the legal model is unclear regarding the start of the withdrawal period. In fact, if strictly interpreted, it only allows the adoption of “a” text module regarding the start of the time limit.

In practice, this is often not feasible, as it often only becomes clear in the course of the order whether partial deliveries will be made.

In the statutory model cancellation policy, 3 variants (text modules) are provided for purchase contracts and 1 variant for services and downloads. The statutory instruction on the use of the model cancellation notice literally states, “Insert one of the following text blocks enclosed in quotation marks.” In Germany, it is sometimes argued in this regard that only a single text module may be used. Since it is unclear how this is actually to be interpreted, we recommend either selecting the appropriate text module or, in case of doubt, using all 3 revocation instructions. In the following, a separate revocation instruction is formulated for each of the 3 text modules.

The statutory model cancellation policy uses the term “revocation”, which is also to be used in Germany, instead of the Austrian term “Rücktritt”. It can therefore be used in both Austria and Germany.

Information on exercising the right of withdrawal in the event of a purchase contract for the delivery of one or more goods in one consignment

Cancellation policy

Right of withdrawal

You have the right to cancel this contract within fourteen days without giving any reason.

The withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, has taken possession of the goods;

To exercise your right of withdrawal, you must send us

…………………………………………………………………………………………..

[Name, address, telephone number, e-mail address of the company].

by means of a clear statement (eg a letter sent by mail or e-mail) about your decision to revoke this contract. You can use the enclosed sample revocation form for this purpose, but it is not mandatory.

[If you give the consumer the choice to electronically complete and submit the information about his or her revocation of the contract on your website, insert the following:]

You can also download the model withdrawal form or another clear declaration on our website

………………………………………………………………………………………….

[Internet-Adresse]

fill in and submit electronically. If you make use of this option, we will send you a confirmation of receipt of such revocation without delay (e.g. by e-mail).

In order to comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

Consequences of the revocation

If you revoke this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and at the latest within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment.

[In the case of sales contracts in which you have not offered to collect the goods yourself in the event of revocation]:

We may refuse to refund you until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.

[Wählen Sie aus den folgenden Optionen]:

☐ We pick up the goods.

☐ You must return the goods immediately and in any case no later than within fourteen days from the day on which you notify us of the revocation of this contract to us or to

…………………………………………………………………………………………

[gegebenenfalls Name und Anschrift der von Ihnen zur Entgegennahme der Waren ermächtigten Person einzufügen]

to be returned or handed over.

The deadline is met if you send the goods before the deadline of fourteen days.

[Wählen Sie aus den folgenden Optionen]:

☐ We bear the cost of returning the goods.

☐ You shall bear the direct costs of returning the goods.

☐ You shall bear the direct costs of returning the goods in the amount of …………EUR [Betrag einfügen]

☐ You shall bear the direct costs of returning the goods. The costs are estimated at a maximum of about ………… EUR. [Betrag einfügen]

☐ We shall collect the goods at our expense.

You only have to pay for any loss of value of the goods if this loss of value is due to the handling of the goods which is not necessary for the inspection of the condition, properties and functioning of the goods.

Information on exercising the right of withdrawal in the event of a purchase contract for the delivery of several goods in several partial shipments as part of a single order

Cancellation policy

Right of withdrawal

You have the right to cancel this contract within fourteen days without giving any reason.

The withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, have taken possession of the last goods.

To exercise your right of withdrawal, you must send us

…………………………………………………………………………………………..

[Name, address, telephone number, e-mail address of the company].

by means of a clear statement (eg a letter sent by mail or e-mail) about your decision to revoke this contract. You can use the enclosed sample revocation form for this purpose, but it is not mandatory.

[If you give the consumer the choice to electronically complete and submit the information about his or her revocation of the contract on your website, insert the following:]

You can also download the model withdrawal form or another clear declaration on our website

………………………………………………………………………………………….

[Internet-Adresse]

fill in and submit electronically. If you make use of this option, we will send you a confirmation of receipt of such revocation without delay (e.g. by e-mail).

In order to comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

Consequences of the revocation

If you revoke this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and at the latest within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment.

[In the case of sales contracts in which you have not offered to collect the goods yourself in the event of revocation]:

We may refuse to refund you until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.

[Wählen Sie aus den folgenden Optionen]:

☐ We pick up the goods.

☐ You must return the goods immediately and in any case no later than within fourteen days from the day on which you notify us of the revocation of this contract to us or to

…………………………………………………………………………………………

[gegebenenfalls Name und Anschrift der von Ihnen zur Entgegennahme der Waren ermächtigten Person einzufügen] to be returned or handed over.

The deadline is met if you send the goods before the deadline of fourteen days.

[Wählen Sie aus den folgenden Optionen]:

☐ We bear the cost of returning the goods.

☐ You shall bear the direct costs of returning the goods.

☐ You shall bear the direct costs of returning the goods in the amount of …………EUR [Betrag einfügen]

☐ You shall bear the direct costs of returning the goods. The costs are estimated at a maximum of about ………… EUR. [Betrag einfügen]

☐ We shall collect the goods at our expense.

You only have to pay for any loss of value of the goods if this loss of value is due to the handling of the goods which is not necessary for the inspection of the condition, properties and functioning of the goods.

Information on exercising the right of withdrawal in the event of a contract for the delivery of goods in several partial consignments or pieces

Cancellation policy

Right of withdrawal

You have the right to cancel this contract within fourteen days without giving any reason.

The revocation period is fourteen days from the day on which you or a third party named by you, who is not the carrier, has taken possession of the last partial shipment or the last item.

To exercise your right of withdrawal, you must send us

…………………………………………………………………………………………..

[Name, address, telephone number, e-mail address of the company].

by means of a clear statement (eg a letter sent by mail or e-mail) about your decision to revoke this contract. You can use the enclosed sample revocation form for this purpose, but it is not mandatory.

[If you give the consumer the choice to electronically complete and submit the information about his or her revocation of the contract on your website, insert the following:]

You can also download the model withdrawal form or another clear declaration on our website

………………………………………………………………………………………….

[Internet-Adresse]

fill in and submit electronically. If you make use of this option, we will send you a confirmation of receipt of such revocation without delay (e.g. by e-mail).

In order to comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period.

Consequences of the revocation

If you revoke this contract, we shall reimburse you all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and at the latest within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged for this repayment.

[In the case of sales contracts in which you have not offered to collect the goods yourself in the event of revocation]:

We may refuse to refund you until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.

[Wählen Sie aus den folgenden Optionen]:

☐ We pick up the goods.

☐ You must return the goods immediately and in any case no later than within fourteen days from the day on which you notify us of the revocation of this contract to us or to

…………………………………………………………………………………………

[gegebenenfalls Name und Anschrift der von Ihnen zur Entgegennahme der Waren ermächtigten Person einzufügen]

to be returned or handed over.

The deadline is met if you send the goods before the deadline of fourteen days.

[Wählen Sie aus den folgenden Optionen]:

☐ We bear the cost of returning the goods.

☐ You shall bear the direct costs of returning the goods.

☐ You shall bear the direct costs of returning the goods in the amount of …………EUR [Betrag einfügen]

☐ You shall bear the direct costs of returning the goods. The costs are estimated at a maximum of about ………… EUR. [Betrag einfügen]

☐ We shall collect the goods at our expense.

You only have to pay for any loss of value of the goods if this loss of value is due to the handling of the goods which is not necessary for the inspection of the condition, properties and functioning of the goods.


Appendix 2: Sample cancellation form (Appendix I B to the FAGG)

Note on usage:

The Model withdrawal form, with which the consumer can declare a possible withdrawal, must be provided to the consumer unchanged (information obligation § 4 para. 1 no. 8 FAGG). Therefore, no adaptations should be made here.

In both the model cancellation policy and the model cancellation form, the term “right of withdrawal” is used instead of the term “right of rescission” contained in the Austrian FAGG. This is explained by the fact that the designs should be able to be used internationally (also in Germany). While Germany generally speaks of the “right of withdrawal”, in Austria the term “right of rescission”, which is common in our country, was used. However, both terms mean the same thing.

Cancellation form

(If you want to cancel the contract, please fill out this form and send it back)

– An

[here the name, address and e-mail address of the entrepreneur is to be inserted by the entrepreneur].

I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/provision of the following service (*)

-Ordered on (*)/Received on (*)

-Name of the consumer(s)

-Address of the consumer(s)

-Signature of the consumer(s) (only in case of notification on paper)

-Date

(*) Delete as applicable.

Status: