Background

Nearly 15 years ago, Directive 2011/83/EU (the “EU Consumer Rights Directive” or “CRD”) introduced the mandatory concept of the right to withdraw in contracts entered into at a distance, including online.

Namely, Article 9 of the CRD granted consumers the right to withdraw from a distance or off-premises contract within 14 days of entering into such contract, without giving any reason or incurring any costs other than return costs and potential diminished value of the goods resulting from the handling of the goods (the “cooling off period”).

This right is strengthened by other European acts, such as the EU Unfair Commercial Practices Directive (Directive 2005/29/EC), which prohibits traders from making it unreasonably difficult for consumers to withdraw from a contract entered into at a distance (e.g. cancel an online subscription) and recent discussions both at an EU and UK level on online subscriptions and how to adapt this right to digital content (UK entities may find a parallel in the somewhat recent Digital Markets, Competition and Consumers Act 2024, including the upcoming inclusion of subscription contracts, or the Consumer Contracts Regulations).

 

New Directive and Timeline

EU Directive 2023/2673, amending the CRD (“Amending Directive”) sets a transposition deadline of 19 December 2025, giving the Member States an additional 6 months to adopt the measures contained within the Amending Directive until 19 June 2026, and a

Although the Amending Directive mainly relates to the withdrawal of financial services entered into at a distance, it now adds a new Article 11a to the CRD relating to the “Exercise of the right of withdrawal from distance contracts concluded by the means of an online interface”.

In brief, the Amending Directive mandates that where a distance contract was concluded by the means of an online interface, the trader should ensure that there is an easily accessible “withdrawal function”, i.e. a link or button, with clear indication for the consumer to “withdraw here” (or providing similar wording) that should remain available throughout the cooling off period.

For reference, under the CRD, a trader is construed to be any person (being a natural person or a company) acting in the course of a trade or business. This will include platforms, naturally, but also publishers and service providers in the videogames industry who may offer contracts at a distance (e.g. where the user may acquire or license directly from the publisher subscriptions, DLCs, in-game items, cosmetics, virtual currency or even a licence to a videogame).

In practice, this means that anyone falling under the definition of a trader as per the CRD and offering the possibility of EU-based consumers to enter into contracts via an online platform (regardless of if the trader is based or not in the EU) should offer during the cooling off period a clear and transparent “withdrawal button” by 19 June 2026.

The exceptions mentioned in Article 16 of the CRD still remain valid. As such, the trader does not need to offer the right to withdraw where the good has been fully performed or where the provision of digital content has begun.

 

What do videogames traders need to do

To further reinforce these exemptions, and to avoid any legal challenges, information must be provided by videogame traders to consumers on their potentially limited right to withdrawal when entering into the contract (and by making it clear in the End-User Licence Agreement, Terms of Service, or equivalent consumer-facing policy) and the consumer shall provide express consent that they acknowledge the loss of the right of withdrawal. This may be done in a simple way (e.g. a simple click) but should be separate to the click required to complete the contract. Lastly, the consumer shall be provided with confirmation of this acknowledgement.

 

Compliance

Lastly, we further note that non-compliance with the CRD may result in (i) fines up to 4% of the trader’s annual turnover in the Member States concerned or €2,000,000 where such information is not available, (ii) the right of withdrawal being extended, or (iii) legal action initiated by the Member States, citizens or competing companies.

 

Conclusion

To sum up, the “withdraw button” shall:

• Be prominent and accessible throughout the cooling off period;
• Be clear and transparent that it’s the link a consumer shall click to withdraw from the contract by using “withdraw contract” or similar wording;
• Use a simple process (e.g. single click), culminating in the consumer receiving confirmation that the contract has been cancelled;
• Not be hidden under excessive and unreasonable barriers (e.g. having to login into an account, unless this is an exclusive requirement to enter into the agreement in the first place);
• Be made available by 19 June 2026.

 

Nevertheless, videogame traders may still benefit from not having to comply with this provision if one of the following exceptions applies:

• Sealed software has been unsealed after delivery;
• Where digital content is supplied in digital format and the performance has begun; or
• The consumer consents to the right being waived, provided that:

 

1. they’re made clear the right will be waived prior to entering into the contract (and in the End-User Licence Agreement, Terms of Service, or equivalent consumer-facing policy);
2. the consent is provided separately to the conclusion of the contract (i.e. two clicks are required).

 

You can learn more about Lee & Thompson’s experience in the videogames sector here.