The Court of Justice of the European Union has ruled in Case C 649/17 Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Amazon EU Sàrl that an e-commerce platform such as Amazon is not obliged in all cases to make a telephone number available to consumers before a contract is made. In doing so, it confirmed the opinion of the Advocate General.
However, the Court did hold that such a platform is obliged to provide those consumers with some means of communication allowing them to contact it quickly and to communicate with it efficiently.
The Consumer Rights Directive (2011/83/EU) requires traders to provide certain information to consumers before a contract is made. This includes “the trader’s telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently”. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) implement the CRD and contain substantively the same wording.
A German consumer federation took action against Amazon before the German courts. It sought a declaration that Amazon did not respect its legal obligation to provide consumers with an efficient means to enter into contact with it, to the extent that it did not inform consumers in a clear and comprehensible manner about its telephone and fax numbers. The German consumer body alleged that the Amazon callback service did not satisfy the information requirements, since consumers have to take a number of steps to enter into contact with the company. German law requires traders, before concluding a distance or off-premises contract with consumers, to provide their telephone number in all circumstances.
In that context, the German courts referred the case to the Court of Justice, asking if the Directive precludes such national legislation and whether traders are obliged to establish a telephone or fax line, or a new email address to allow consumers to contact them. The German court also asked if traders may use other means of communication, such as instant messaging or telephone callback.
The Court ruled that the Directive precludes such national legislation. It noted that the Directive does not oblige traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them in all circumstances and that the Directive requires that telephone or fax number or email address to be communicated only where those traders already have those means of communicating with consumers. At the same time, the Court noted that the Directive requires traders to provide consumers with a means of communication guaranteeing direct and efficient communication, those traders being able to use other means of communication than those provided for in that Directive to satisfy those requirements.
The Court confirmed that the Directive seeks to ensure a high level of consumer protection by guaranteeing their information and their safety in transactions with traders. To that end, the possibility, for consumers, to contact traders quickly and to communicate with them efficiently is of fundamental importance for the protection and effective implementation of consumer rights and, in particular, of the right of withdrawal. However, it is necessary to strike the right balance between a high level of consumer protection and the competitiveness of enterprises, as provided for in the Directive, while respecting traders’ freedom to conduct a business, as set out in the Charter of Fundamental Rights of the European Union.
The Court stated that an unconditional obligation imposed on traders to provide consumers, in all circumstances, with a telephone number or to establish a telephone or fax line, or to create a new email address to allow consumers to contact them, appeared to be disproportionate. As regards the meaning of the expression ‘where they are available’, in reference to the three current means of communication between consumers and traders (telephone, fax, email), and despite differences between the language versions, the Court considers that that expression covers cases where traders have such a means and make it available to consumers.
Moreover, the Directive does not preclude traders from providing other means of communication (such as electronic contact forms, instant messaging or telephone callback), as long as those means of communication allow for direct and efficient communication between consumers and traders, which assumes that information relating to those means of communication is accessible to consumers in a clear and comprehensible manner.
The Court notes that it is for the national courts to assess whether the means of communication made available to consumers by traders allows consumers to contact traders quickly and to communicate with them efficiently and whether information about those means of communication are accessible in a clear and comprehensible manner. In that regard, the Court notes that the fact that a telephone number is available only after a series of clicks on the website does not, in itself, imply that the means used for giving information to consumers is not clear and comprehensible.
