July 15, 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 e-mail address.
In particular, the Bundesverband said that Amazon had failed to fulfil, in a clear and comprehensible manner, its obligations as before the conclusion of an online sale 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) that a trader must provide to consumers in distance and off-premises contracts. It also asked whether that list is exhaustive, or whether online traders can use other means of communication, such as instant messaging or telephone callback. It also asked questions on the scope of the obligation of transparency incumbent on traders.
Article 6(1)(c) provides that before a consumer is bound by a distance or off-premises contract the trader must provide, in a clear and comprehensible manner, its geographical address and telephone number, fax number and email address, where they are available, to allow the consumer to contact it quickly and communicate with it efficiently.
The CJEU said that there are two ways of interpreting this requirement: (i) traders are obliged to provide their telephone number and fax number if those numbers are available; or (ii) traders only have to provide the information if they use telephone or fax when contacting consumers. The use of the expression “where available” makes the exact scope of the provision difficult to determine.
The objective of the Directive is, the CJEU said, to provide a high level of consumer protection by giving them a number of rights in relation to, inter alia, distance and off-premises contracts. Being able to contact traders quickly and communicate efficiently is of fundamental importance.
The purpose of Article 6(1)(c) is to provide the relevant information to consumers before the contract is concluded so that they can decide whether they wish to be contractually bound, and so that the contract can be properly performed, i.e. consumers can exercise their rights.
Nevertheless, the CJEU said that the correct balance has to be struck between a high level of consumer protection and the trader’s freedom to do business.
The CJEU held that although Article 6(1)(c) does not determine the precise nature of the means of communication that traders must provide, it does require them to provide a means of communication that allows the consumer to contact them quickly and to communicate with them efficiently.
In the CJEU’s judgment, it is for national courts to assess whether, in the light of all the ways in which consumers make contact with traders through a website, considering in particular the design and functionality of that site, the means of communication made available do in fact allow consumers to contact traders quickly and to communicate with them efficiently.
In the CJEU’s view it would be disproportionate to unconditionally oblige traders to provide consumers, in all circumstances, with a telephone number, or even to put in place a telephone or fax line or to create a new email address so that consumers can contact them.
Therefore, the CJEU interpreted “where available” as covering traders who already have a telephone or fax number in place that they use, not just for contacting consumers, but for other purposes as well. Where there is no such number, Article 6(1)(c) does not oblige traders to inform consumers of that telephone number, to provide a telephone or fax line, or to create a new email address to allow consumers to contact them.
Further, the CJEU said, Article 6(1)(c) does not preclude traders from providing other means of communication, such as a website contact form to which the trader can either respond in writing or quickly call the consumer back, in order to satisfy the criteria of direct and effective communication. The provision also does not preclude traders, who do have a telephone number that can be found in a few clicks, from encouraging consumers to use other means of communication not mentioned in Article 6(1)(c), such as instant messaging or a telephone callback system. It is for the national courts to decide whether the information is made accessible in a clear and comprehensible manner. The fact that the telephone number can only be found after completing a series of clicks does not, in itself, mean that the manner used is not clear and comprehensible where a trader is selling goods exclusively by means of a website. (Case C-649/17 Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Amazon EU Sàrl EU:C:2019:576 (10 July 2019) — to access the judgment in full, click here.