On July 9, 2026, the Court of Justice of the European Union (“CJEU” or “Court”) delivered its judgment in Sky Österreich Fernsehen (C-234/25), deciding that a streaming offering constitutes a digital service under the Consumer Rights Directive (Directive 2011/83/EU), rather than digital content, where the trader’s offering is of a dynamic nature and goes beyond the stable or continuous provision of specific content. As a result, providers of such streaming offerings cannot rely on the Consumer Rights Directive’s exception to the right of withdrawal for digital content.

The judgment has broad implications for providers of personalised digital services, as it affects whether consumers can cancel a subscription during the 14-day withdrawal period and, if they do, how much providers may charge for use of the service during that period.

I. Background

The case concerned streaming subscription packages offered by Sky Österreich through which consumers could access audiovisual content stored on Sky’s servers via an application or hyperlink. Subscribers could view content live and on demand and, depending on the applicable license, download certain content for temporary offline viewing. Consumers subscribing to the service were required to consent to the commencement of performance before the expiry of the 14-day withdrawal period and acknowledge that they would thereby lose their right of withdrawal.

A consumer association challenged that practice, arguing that the subscriptions constituted digital services rather than digital content. The distinction is important because Article 16(m) of the Consumer Rights Directive allows traders, in certain circumstances, to exclude the consumer’s right of withdrawal for contracts for the supply of digital content that is not supplied on a tangible medium. The Austrian Supreme Court therefore asked the CJEU whether a streaming service allowing consumers to access content live, on demand and through temporary downloads constitutes the supply of digital content for the purposes of that provision.

II. The Court’s Decision

The Court held that the fact that a streaming service enables consumers to access digital data supplied in digital form does not, by itself, mean that the service constitutes digital content. It noted that both digital content and digital services may involve the continuous supply of digital material and that neither the technical means used to provide access to content nor the continuous nature of the supply is, in itself, decisive.

According to the Court, the relevant distinction lies in the nature of the trader’s offering. Unlike digital content, a digital service is characterized by a dynamic offering that goes beyond the stable and, where applicable, continuous provision of specific content. The Court identified as relevant whether the service adapts to the consumer’s behavior or expectations or influences how the consumer uses the service, for example through personalized recommendations, playlists or similar functionalities.

Applying those principles, the Court observed that Sky Österreich’s offering appeared to involve updates to available content and personalized recommendations based on user behavior. Subject to verification by the referring court, it therefore appeared to constitute a digital service rather than digital content.

The Court also emphasized that Article 16(m), which provides an exception to the right of withdrawal for contracts for the supply of digital content not supplied on a tangible medium, must be interpreted strictly. Referring to Recital 30 of Directive 2019/2161, it noted that where there is doubt as to whether a contract concerns digital content or a digital service, the rules applicable to services should apply.

Finally, the Court rejected the argument that recognizing a right of withdrawal for such streaming services would leave providers without protection. It recalled that, where a consumer expressly requests performance during the withdrawal period pursuant to Article 8(8) of the Consumer Rights Directive and subsequently withdraws from the contract, the provider may claim compensation under Article 14(3) for the services supplied up to that point. The Court further held that, depending on the circumstances, that compensation may take account not only of the period during which the consumer had access to the service but also the economic value of content accessed during that period.

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Covington & Burling regularly advises companies on all aspects of EU consumer protection law, as well as its inter-sections with privacy, cybersecurity, and product safety laws. We closely monitor developments before the Court of Justice of the European Union and are available to assist with any questions relating to compliance with EU consumer protection requirements.

Tags: CJEU, Digital Content, Digital Services, Right of WIthdrawal, Subscriptions
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