July 20, 2020
Article 13(1) of the Consumer ADR Directive (2013/11/EU) requires Member States to ensure that traders in their territories inform consumers about the ADR entity or entities the traders are obliged to use, or have committed to use, to resolve disputes with consumers. Article 13(2) provides that this information must be provided “in a clear, comprehensible and easily accessible way on the traders’ website, where one exists, and, if applicable, in the general terms and conditions of sales or service contracts between the trader and a consumer”.
Deutsche Apotheker- und Ärztebank eG (DAÄB) is a cooperative bank that operates the website www.apobank.de, via which no contracts are concluded.
The legal notice on DAÄB’s website contained information on its willingness or obligation to take part in a dispute resolution procedure before a consumer conciliation body. In addition, consumers could download, as a PDF, the general terms and conditions of the contracts that DAÄB concluded with consumers. Those terms and conditions contained no information on DAÄB’s participation in any dispute resolution procedure. However, when DAÄB concluded a consumer contract, the consumer received, in addition to the general terms and conditions, a list of prices and services on the reverse of which details of DAÄB’s commitment to participating in a dispute resolution procedure were provided.
The claimant, Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV (the Federal Union of Consumer Organisations and Associations, Germany) issued proceedings against DAÄB claiming that DAÄB’s business practices were contrary to German law. It sought an order that DAÄB should include its commitment to using consumer conciliation bodies in its general terms and conditions.
The matter reached the Higher Regional Court of Düsseldorf, which asked the CJEU whether Articles 13(1) and (2) should be interpreted as meaning that a trader such as DAÄB who provides its general terms and conditions of sale or service contracts on its website, but concludes no contracts with consumers via that website, must provide information about the ADR entity or entities it is covered by in its general terms and conditions, or whether it can provide that information in other documents accessible on his website, or under other tabs on the website, or in a separate document from the general terms and conditions upon conclusion of a contract subject to those general terms and conditions.
The CJEU said that the wording of Article 13(2) was unambiguous and provided that the information in question must be provided “in” the general terms and conditions, where they are published on the trader’s website, and not in other documents accessible on that website or under other tabs thereof.
The CJEU said that the objective of the Directive was to ensure a high level of consumer protection by ensuring that consumers can, voluntarily, submit complaints against traders to entities offering ADR procedures. In order for consumers to be able to do this they must be informed quickly about the redress mechanisms available and whether or not the trader will participate in such ADR procedures.
Further, the CJEU said, Article 13 does not limit the information obligation to cases where the trader concludes contracts with consumers via its website. Under Article 13, information about applicable ADR entity or entities must be provided on the trader’s website “if the trader maintains a website, and, if applicable, in the general terms and conditions” with the expression “and, if applicable” showing that the information must not only be provided on the trader’s website but also be included in the general terms and conditions when they are available on that website. Therefore, the CJEU held, the information obligation is not satisfied if a trader publishes its general terms and conditions on its website, omitting the ADR information, but including it elsewhere on its website.
Further, the CJEU said, Article 6(1)(t) of the Consumer Rights Directive (2011/83/EU) provides that consumers must be informed of any out-of-court redress mechanism to which the trader is subject and of how to access it “before” being bound by a distance or off-premises contract, or any corresponding offer. Therefore, it is not sufficient that the consumer receives such information at the time the contract is concluded, whether in the general terms and conditions of the contract or in a separate document. (Case C-380/19 Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Deutsche Apotheker- und Ärztebank eG, EU:C:2020:498 (25 June 2020) — to read the judgment in full, click here).