Digital Content Or Digital Service? The Implications Of The Recent CJEU Judgement For Traders In Romania

July 2026 – On 9 July 2026, the Court of Justice of the European Union (“CJEU”) issued its judgment in Case C-234/25, Sky Österreich, providing important clarification on consumers’ right of withdrawal in relation to distance contracts.

Although the case concerns a streaming service, its implications extend well beyond the streaming industry. The judgement establishes important criteria for distinguishing between “digital content” and a “digital service”, a distinction that is decisive in determining whether the exception to the right of withdrawal applies under Article 16 of Directive 2011/83/EU and, consequently under the national transposition, i.e., Article 16 of Government Emergency Ordinance No. 34/2014 on consumer rights in contracts concluded with professionals (“GEO 34/2014”).

Digital content or digital service?

Prior to the CJEU’s judgement, there was a tendency in practice to assume that any streaming service automatically constituted the supply of digital content.

The CJEU has now clarified that the technical means through which the consumer accesses the content is not determinative. Accordingly, the mere fact that content is accessed via streaming, a dedicated application, a hyperlink, or even through the temporary downloading of files does not, in itself, determine the legal classification of the service. Likewise, the continuous nature of the supply is not, by itself, sufficient to qualify the offering as digital content.

Instead, the decisive criterion is a functional one.

According to the CJEU, a digital service is characterised not merely by the supply of digital data, but by the trader’s continuous involvement in providing a dynamic offering that goes beyond the stable and, where applicable, continuous provision of specific digital content.

The Court explains that the dynamic nature of a digital service implies the trader’s ability to adapt the offering to the consumer’s behaviour or expectations, or to influence the consumer’s use of the service, for example through personalised recommendations based on the consumer’s viewing history, playlists, or favourites.

A restrictive interpretation of the exceptions

The judgement also reaffirms a well-established principle of the CJEU’s case law: exceptions to the right of withdrawal must be interpreted strictly.

In this respect, the CJEU places particular emphasis on Recital (30) of Directive (EU) 2019/2161, which states that where there is uncertainty as to whether a contract concerns the supply of digital content or the provision of a digital service, the rules governing the right of withdrawal applicable to services should apply. Accordingly, where there is uncertainty as to whether a service supplied under a distance contract should be classified as digital content or as a digital service, the safer approach is to treat it as a digital service. Consequently, the consumer retains the right of withdrawal, and the exception applicable to digital content does not apply.

How are traders’ interests protected?

Pursuant to Article 14(3) of Directive 2011/83/EU, a consumer who requests the commencement of the performance of the contract during the withdrawal period and subsequently exercises the right of withdrawal is required to pay the trader an amount proportionate to the services already provided.

Importantly, the CJEU further clarifies that such compensation should not necessarily be calculated solely on a pro rata temporis basis. Depending on the circumstances, the trader may also consider the economic value of the content actually consumed, particularly where the subscription was purchased solely to access specific content of particularly high economic value (e.g., a major sporting event or the premiere of a highly anticipated TV series).

Practical implications for traders in Romania

The Court’s reasoning may affect the legal assessment of a broad range of digital services available on the Romanian market, including online learning platforms, fitness applications, cloud services, online subscriptions, SaaS platforms, and any other services that personalise the user experience based on consumer behaviour.

Accordingly, traders currently relying on the exception set out in Article 16(m) of GEO 34/2014 should reassess whether, in light of the criteria established by the CJEU, their offering should properly be characterised as digital content or as a digital service.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.