March 11, 2019

The claimant, Bundesverband der Verbraucherzentralen (the German federation of consumer associations), issued proceedings against the defendant, Amazon EU Sàrl, seeking a declaration that Amazon had infringed German legislation which, in implementation of the Consumer Rights Directive, requires traders to indicate, in a clear and comprehensible manner, their geographical address and telephone number and, where appropriate, their fax number and email address. In particular, the Bundesverband said that Amazon had failed to fulfil, in a clear and comprehensible manner, its obligations regarding the provision of information to consumers, given that, before the conclusion of online sales, no fax number is given on the website and no telephone number is made immediately available (this being displayed only after a certain procedure is completed by the consumer). Amazon does offer an automated call-back facility and an online chat service, but the Bundesverband said these were not sufficient.

The matter reached the Federal Court of Justice in Germany, which referred questions to the Court of Justice of the European Union concerning the correct interpretation of the expression “where available” under Article 6(1)(c) of the Directive, which lists the means of communication (telephone, fax and email), which a trader must provide to consumers in distance and off-premises contracts, and whether that list was exhaustive. It also asked questions on the scope of the obligation of transparency incumbent on traders.

Advocate General Giovanni Pitruzzella has opined that the aim of the Directive is to increase the level of protection afforded to consumers, at the same time as guaranteeing competition. Therefore, the Directive should be interpreted so as to ensure the highest possible level of consumer protection without impinging on the organisational freedom of businesses, except to the extent strictly necessary.

The AG said that effective consumer protection is achieved not by imposing a particular contact method (such as by telephone), but by ensuring that consumers are able to make use of the most effective communication channels in the particular situation. Imposing a particular means of communication, such as by telephone, which is unnecessary for ensuring effective consumer protection, could be disproportionate to the objectives of consumer protection and liable to impose undue burdens on the undertakings concerned, particularly those that are not “internet giants” like Amazon.

For the AG, therefore, what matters is not the means of communication considered in the abstract, so much as the ability of that means of communication of ensuring: (i) rapid contact and efficient communication between consumers and traders; and (ii) the provision of clear and comprehensible information.

The AG therefore proposed that the CJEU find that, as regards distance and off-premises contracts, the list of means of communication in Article 6(1)(c) is merely illustrative. Traders are therefore free to choose which means to make available, including means of communication not expressly mentioned in the Directive, such as, for example, online chat or an automatic call-back facility, provided the objectives of the Directive are met. In addition, the AG said, it could be inferred from the Directive that there is an obligation on traders to make several means of communication available to consumers, allowing the latter freedom of choice.

As for the requirement of “clear and comprehensible” information under Article 6(1)(c), the AG noted that these are aspects of the general requirement that contractual terms and conditions should be transparent. This clearly also applies to contact methods and requires the trader to ensure that consumers can understand unequivocally what contact methods are available in the event that they should need to communicate with the trader. Further, the AG said, a necessary precondition for transparency is that information should be readily accessible. Therefore, it would be inconsistent with the Directive’s purposes if navigation were so complex as to make it difficult to access the information required. The AG therefore proposed that the CJEU rules that, in accordance with the requirement of transparency, the information provided by the trader on the means of communication should be easily, effectively and relatively quickly accessible by the consumer.

As for the meaning of the words “where available” concerning the three typical means of communication between traders and customers (telephone, fax and email), the AG opined that these should be interpreted as not imposing an obligation on traders to set up a new telephone or fax connection or a new email account and, secondly, that the expression means “where made available for customers” and not, “where they exist in the business organisation”. Indeed, not all means will be available to all who might wish to use it. Therefore, the AG concluded that, where an undertaking does have a telephone line, it does not necessarily have to be made available to consumers, provided that the Directive’s objectives are met.

Finally, the AG noted the prohibition in the Directive on Member States introducing into national law provisions that diverge from those set out in the Directive, and opined that the Directive precludes national legislation from imposing an obligation on traders that is not provided for in the Directive, such as the obligation to make a contact telephone line available to consumers in all cases. (Case C-649/17 Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Amazon EU Sàrl EU:C:2019:165 (Opinion of Advocate General) (28 February 2019) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).