New interpretation on the provisions of Directive 2011/83/EU requiring traders to inform the consumers with respect to the communications means

A new, more flexible and result oriented interpretation of the provisions of Directive 2011/83/EU on consumer rights requiring traders to provide consumers information regarding the means through which they may contact the former, is offered by the Advocate General through the opinion issued in case C‑649/17.

In the opinion, it is mentioned that the traders have the obligation to enable efficient communication means and to clearly inform the consumers regarding the way in which those means can be used. Yet, this obligation cannot be interpreted as imposing on the traders, in their relation with the consumers, the implementation of certain communication means specified by the Directive 2011/83/EU (e.g. the mobile phone).

Thus, the opinion underlines that consumer protection is done not by imposing certain methods of communication, but by ensuring that the consumers are able to use the most efficient means of communication for the environment in which they operate transactions.

In case C‑649/17 - Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v. Amazon EU Sàrl, the applicant in the main proceedings claimed that the contact channels which Amazon offers its customers prior to the conclusion of a contract are insufficient, as they differ from those required by Article 6 para (1) letter c) of Directive 2011/83/EU on consumer rights (the “Directive”).

Amazon offers consumers an automated call-back facility and an online chat service through which it may be contacted. However, the applicant in the main proceedings alleges that these are not sufficient for Amazon to discharge its legal obligations, arguing that Amazon does not offer the consumers the communication channels provided by Article 6(1)(c) of the Directive, respectively that the consumers are not provided with a telephone number where to contact Amazon.

In this context, the Court of Justice of the European Union was requested to issue a preliminary ruling with respect to, amongst others, the following question:

Is the list of means of communication (telephone, fax and email) set out in Article 6(1)(c) of the Directive exhaustive, or may traders also use other means of communication not mentioned in that list, such as online chat services or call-back facilities, provided that they ensure rapid contact and efficient communication?

In his opinion delivered on 28 February 2019 (the “Opinion”), the Advocate General first underlines that the Directive aims to achieve full harmonization, thus forbidding the Member States, unless otherwise expressly provided in the Directive itself, from introducing or maintaining derogatory provisions.

Analysing the question addressed, the Advocate General interprets the provisions of Article 6(1)(c) of the Directive as containing an illustrative list of several means of communication. Thus, according to the Opinion, under Article 6(1)(c) of the Directive, the traders have the obligation to provide the consumers with effective communication channels and to clearly inform the consumers with respect to the manner in which such communication channels may be used. The mentioned provision does not impose an obligation for the traders to provide certain communication channels (e.g., telephone) in all cases.

The Opinion furthermore underlines that consumer protection is achieved, not by requiring a particular contact method, but by ensuring consumers are able to make use of the most effective communication channels for the environment where they carry out transactions. This interpretation is in line with the fast evolving technological environment of today, where traders constantly evolve new methods to reach out to their customers.

Government Emergency Ordinance no. 34/2014 on consumer rights in contracts concluded with undertakings (“GEO 34/2014”) implements in Romania the Directive. Pursuant to GEO 34/2014 and in a manner which faithfully reproduces the Directive, it is stipulated that before the consumer is bound by a distance or off premises contract, the trader shall provide the consumer with, amongst other, information regarding “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 […]”.

In Romania, the National Consumer Protection Authority (“ANPC”) repeatedly expressed the position that the trader has the obligation to provide to the consumers with information regarding telephone number, fax and e-mail address where the trader may be contacted.

In the view of the ANPC, the trader has the obligation to provide the consumer with a telephone line, irrespective of the fact that the trader also provided the consumer with other means of communications, which allow quick and effective communication between the consumers and the trader.

Such viewpoint may be criticized due to its excessively formalistic and sometimes burdensome for the traders, but also to the fact that it does not guarantee a real protection of the rights of the consumers, as highlighted by the Advocate General in his Opinion. The focus should be paced on the need to ensure that the consumers have at their disposal quick and effective means of communication with the traders with which they conclude distance contracts and that they receive relevant, clear and accessible information with respect to those means of communication. The trader should be therefore able to decide which means of communications to implement, depending on its business model and consumer preferences.

The Court of Justice of the European Union has not reached a final decision in case C‑649/17 - Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v. Amazon EU Sàrl and the Opinion of the Advocate General is not binding to the Court.