expires prematurely if the consumer has agreed to the commencement of the service and the entrepreneur has provided the service in full, or if the consumer has agreed that their right of withdrawal expires upon commencement of the service189. Therefore, as a rule, there is no right of withdrawal for online table reservations, as this is a service contract that is intended to be provided on a specific date or period and therefore falls under the exceptions to the right of cancellation190 Similarly, contracts for leisure activities that require a specific date or period are excluded from the right of cancellation191. A table reservation in a restaurant falls into this category (exemption for leisure-related services)192 Beyond that, and in addition to the withdrawal period of 14 days, withdrawal is excluded from the outset193: there are several transactions for which there is no right of a withdrawal, so as to protect suppliers. These include, for example, the purchase of customised goods. If such purchases could be cancelled, the supplier would risk being left with the goods due to absence of demand. Similarly, there is no right of withdrawal in the purchase of perishable goods such as fresh fruit and vegetables, as they would be out of date and no longer for sale able. Consequently, a return of goods would be impossible on the grounds of hygiene194. Service in the supply of food, for example, also covers the catering recitals 2, 4, 5, 9, 13, 19, 20, 21, 34, 36, 37, 39, 40, 43, 49 and Art. 2 para 8 and Art. 6, 7, 9, 12, 16 of the Directive 2019/771/EU (supra n. 128). 189 See the ECJ decision from 21.12.2023, C-38/21, C-47/21 and C-232/21, recital 193 (the right of cancellation expires with consent to the provision of the service: If the consumer has consented to the immediate performance of the service and the trader begins to provide the service). In catering contracts, the service, i.e. the provision of the table on a fixed date, usually starts immediately after the booking or preparations are made for the customer (fulfilment of the contract), which results in the loss of the right of cancellation. 190 See § 312g (2) No. 9 BGB. The contract is often effective from the start of the provision of the service and cancellation is therefore excluded. 191 Recital 49 of the Consumer Rights Directive justifies the exclusion of the right of withdrawal by stating that “the conclusion of the contract involves the provision of capacity which the trader may no longer be able to use in any other way if the right of withdrawal is exercised; e.g. reservations in hotels, for holiday homes: Reservations in hotels, for holiday homes or cultural and sporting events”. 192 A service that is related to a later leisure event and is not contractually to be provided within a certain period of time is not likely to be covered by the exception in Article 16(I) of the Consumer Rights Directive if it is interpreted narrowly. 193 The German Federal Supreme Court (BGH) has ruled (in its judgement of 13.07.2022 - VIII 317/21) that a lack of information about an exception to the right of withdrawal does not lead to the creation of a right of withdrawal. 194 Practically the customer should always check the cancellation conditions, which means reading the restaurant’s terms and conditions to find out whether and under what conditions a free or chargeable cancellation is possible. In any case the customer has the burden to contact and to inform the restaurant as early as possible whether he/she is unable to keep the table. However, without having any legal obligation to do so, the restauranteur offers goodwill and allow the customer to cancel free of charge. 101 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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