(ECJ, 5 July 2012, Content Services Ltd vs. Bundesarbeitskammer, case C-49/11)

E-commerce websites that do not provide access to information set out in Directive 97/7 relating to consumer protection in respect of distance contracts (seller's name, cooling-off period, etc.), except via a hyperlink, must modify their practices, ruled to be non-compliant by the European Court of Justice.

The Oberlandesgericht of Vienna had referred the case for a preliminary ruling to the ECJ, which had handed down its judgement on 5 July 2012.

In this case, the company Content Services Ltd had informed consumers that they had agreed to waive their right to a cooling-off period only in their Terms and Conditions of Sale, accessible during the order process via a hyperlink, which itself was placed next to a box to be ticked demonstrating acceptance by the consumer.

The practice in question was considered to be contrary to the requirements of Directive 97/7 as follows:

  1. The communication of a hyperlink does not meet the requirement for the company to provide prior information as set out in Article L.121-19 of the French Consumer Code  transposing the requirements of Directive 97/7 nor  that of receipt of said information by the consumer.
  2. An Internet website does not constitute a durable medium, which is defined by the Court as a medium that ensures "…that the consumer, in a similar manner to paper form, is in possession of the information referred to " in Article 5 of Directive 97/7 "such as to enable him to exercise his rights where necessary."