The European Court of Justice recently decided on a preliminary ruling concerning the interpretation of Art. 6(1)(c) of the Consumer Rights Directive 2011/83/EU (the “Directive”) and found that the mandatory pre-contractual contact information to be provided on e-commerce websites throughout the EU does not necessarily include a telephone number. The issue came up in the context of proceedings initiated by German consumer watchdog group Bundesverband der Verbraucherzentralen und Verbraucherverbände (VZBZ) against a large e-commerce platform.
The decision is of great importance for online service providers and e-commerce companies especially in Germany, where current statutory law is stricter than the interpretation of the Directive now put forward by the ECJ. regarding the provision of a telephone number as one of the pre-contractual information obligations of traders to consumers. The new decision will put an end to the cease-and-desist letters on this matter.
According to Art. 6 of the Directive, before the consumer is bound by a distance or an off-premises contract, or any corresponding offer, the trader must provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context:
the geographical address at which the trader is established and 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 and, where applicable, the geographical address and identity of the trader on whose behalf he is acting.
According to Sec. 312d (1) of the German Civil Code (BGB), entitled “Information requirements”:
Under off-premises and distance contracts, traders shall be required to provide information to consumers in accordance with the provisions of Article 246a of the Introductory Law to the Civil Code (EGBGB). The information provided by traders in fulfilment of that obligation constitutes an integral part of the contract, except where otherwise expressly agreed by the parties.
Art. 246a of the EGBGB provides:
The trader shall, pursuant to Para. 312d(1) of the BGB, provide the consumer with the following information:
his identity, such as his trading name, the geographical address at which he is established and his telephone number and, where available, his fax number and email address and, where applicable, the geographical address and identity of the trader on whose behalf he is acting.
The German court had put six questions to the EU judges. In essence, it wanted to know
- whether Member States might enact provision that obliges a trader to make always make their telephone number available to the consumer prior to acceptance of the contract,
- whether the expression “where available” in the Directive meant that traders only had to provide information about contact channels they were actually using for communication with consumers, or whether this obliged them to create such channels, and
- whether the channels listed in the Directive (fax, phone and e-mail) were exhaustive, or other channels were possible.
The ECJ had clear answers on all counts:
- Art. 6(1)(c) of the Directive must be interpreted as precluding national legislation, which imposes on traders, before concluding a distance or off-premises contract, to provide, in all circumstances, their telephone number.
- The Directive does not imply an obligation for traders to establish a telephone or fax line, or to create a new email address, to allow consumers to contact them if they do not already have one. It only requires that the phone number, the fax number or their email address be communicated where they already have those channels available and use them to communicate with consumers.
- Although it is required for the traders to make available to consumers 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 the listed ones in order to satisfy the legal criteria.
What this means
The decision is in line with earlier jurisprudence from the ECJ concerning the contents of the mandatory contact information notice on commercial websites – there too, the judges were ready to accept alternatives to phone numbers if those alternative channels were sufficiently direct and fast – such as a live chat functionality.
As long as rapid contact and efficient communication with consumers is possible, traders are legally completely free to choose the precise channel(s) for this purpose. They can continue to use traditional means of communication such as email, phone, or fax.
However, trades may just as well use other (more) modern means of communication, which might also reduce operating costs. An electronic enquiry template which allows consumers to contact traders by means of a website and receive a written response or be quickly called back, are more and more popular in online services. This is not surprising because instant messaging (“online chat”) is essentially a technical evolution of the fax, and telephone callback systems are a technological development of the traditional call centres, as stated also by the ECJ’s Advocate General Pitruzzella.