In Amazon EU Case C-649/17, the Court of Justice of the European Union (CJEU) held that the Consumer Rights (CR) Directive 2011/83/EU does not require an e-commerce platform to make a telephone number available to consumers before the conclusion of a contract. It is sufficient for traders, when concluding distance contracts with consumers, to use other means of communications, such as online chat services or telephone call-back, as long as consumers have a means of contacting traders quickly and efficiently.

Background

The website www.amazon.de offered consumers the possibility, prior to completing their order, to click on an electronic link marked ‘Contact us’. Consumers then reached a webpage offering them three options to contact Amazon, including (i) send an email; (ii) make contact by telephone or (iii) start an online conversation by way of chat. It did not provide a fax number. If the consumer chose the telephone option, another web page opened, offering him/her the possibility to provide a telephone number and be called back. It also offered the option of calling a general helpline, but included wording indicating that doing so would result in the consumer having to answer a series of questions to confirm their identity.

The German Federal Union of Consumer Organisations considered that Amazon EU did not respect its legal obligation to provide consumers with effective means to enter into contact with it, in so far as it did not inform consumers in a clear and comprehensible manner about its telephone and fax numbers. The Federal Union alleged that the Amazon call-back service did not satisfy the information requirements, since consumers had to take a number of steps in order 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. Under EU law, Article 6(1)(c) of the CR Directive requires that, before a consumer is bound by a distance or off-premises contract, the trader must provide him/her, in a clear and comprehensible manner, “the geographical address at which the trader is established and the trader’s telephone number, fax number and email address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently“.

The German Federal Court of Justice considered that, in order to resolve the dispute before it, it was necessary to clarify the scope of the expression “where available” in Article 6(1)(c) of the CR Directive.

The German Court asked the CJEU whether Article 6(1)(c) obliges traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them. The referring court also asked whether those traders may, in circumstances such as those in the main proceedings, make use of means of communication which are not mentioned in that provision, such as instant messaging or call-back service.

Decision

The CJEU found that Article 6(1)(c) of the CR Directive precludes national legislation from imposing on traders, before concluding a distance or off-premises contract, an obligation to provide, in all circumstances, their telephone number. The words “where available” in Article 6(1)(c) mean that traders are not obliged in all circumstances to provide their telephone or fax number, or to create a new email address to allow consumers to contact them. It only requires a telephone or fax number, or email address to be communicated where traders already have those means of communicating with consumers.

The CJEU noted that though the CR Directive requires traders to provide consumers with a means of communication capable of satisfying the criteria of direct and effective communication, it does not preclude those traders from providing other means of communication than those provided for in the Directive in order to satisfy those criteria.

It was necessary to ensure the right balance between a high level of consumer protection and the competitiveness of undertakings, as is stated in recital 4 of the CR Directive, while respecting the undertakings right to conduct a business, as set out in Article 16 of the Charter of Fundamental Rights of the European Union. The CJEU found that an unconditional obligation to provide consumers, in all circumstances, with a telephone number, or to put in place a telephone or fax line, or to create a new email address to allow consumers to contact them, was disproportionate.

The CJEU held 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 comprehensive manner.

Comment

This is a broad interpretation of the CR Directive, which provides traders with some discretion in regard to the means of communications by which consumers can contact them. It is noteworthy that, unlike the German legislation, the Irish EU Consumer Information Cancellation and Other Rights Regulations 2013 (S.I. 484/2013) (which transposes the CR Directive) is in line with the requirements of Article 6(1)(c) of that Directive. It specifically requires traders, prior to concluding distance or off-premises contracts, to provide their telephone number, fax number and email address “where available”. Traders around Europe, who contract with consumers at a distance or off-premises, will welcome the clarification this decision brings in regard to the scope of their consumer information obligations under the CR Directive.