Friday, 1 March 2019

Online chats may be as efficient as phone talks - AG Pitruzzella in Amazon EU (C-649/17)

Yesterday, AG Pitruzzella issued his opinion in the case concerning Amazon EU's compliance with the information obligations imposed on online traders by the Consumer Rights Directive (C-649/17). Namely, the German federation of consumer associations considered Amazon EU as not transparently informing consumers how to contact it: it did not provide a fax number to consumers, and only displayed a phone number of its general helpline after consumers answered a series of questions, incl. questions related to consumers' identity.

Article 6 CRD requires online traders to provide before the conclusion of the contract a number of information, including in point (c): "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 questions that were asked by the national court were as follows: What does it mean that the phone and fax number and email address are to be conveyed to consumers only 'where available'? Could the Member States required traders to always provide consumers with a phone number, not only when 'where available'? Could the trader use different means of communication to contact the consumer and inform consumers about them instead? E.g. Amazon used online chat services and call-back facilities. And finally does the transparency requirement impose an obligation on online traders to supply this information quickly and efficiently?

Using other means of communication

AG Pitruzzella notices that Article 6(1)(c) CRD introduces two separate obligations. First, the traders needs to inform consumers transparently about the methods of contact that consumers may use, which means that consumers need to 'understand unequivocally' how to communicate with traders. Second, online traders need to ensure that the communication with consumers is quick and efficient, whenever consumers require to contact them (para. 47-53). The particularities of which means of communication are prescribed by the trader are of less relevance than their actual ability to ensure quick and efficient communication between the parties (para. 54, 82, 86). This should suggest that online traders could choose other than prescribed in the CRD means of communication (para. 95):

"Provided that those requirements are met, the choice of what means of communication are actually to be made available is left to the trader, who will have regard, inter alia, to the characteristics of the context in which the negotiation with the consumer takes place"

AG Pitruzzella also compares this situation to the rules on the E-commerce Directive, which also refer to the communication with consumers through a phone line, but where the ECJ previously declared that online traders could be more efficiently often contacted through different means of communication (deutsche internet versicherung, C-2987/07, para. 40).

Using means of communications 'where available'

Following both literal, comparative, systemic and teological interpretation of the term 'where available', AG Pitruzzella concludes that Art. 6(1)(c) does not require traders to always provide for communication means such as a phone, fax and email (para. 67). Thus, even if the online trader actually has a phone line, they do not have to make it available to consumers for communication purposes. Consequently, only if online traders have set up a phone line for the purpose of communicating with consumers they need to provide information on that phone number to consumers (para. 78).


AG Pitruzzella examines in details the requirements for transparency from the CRD: clarity and comprehensibility. Clarity, pursuant to him, is a requirement of formal transparency: "which must apply to the outward manner in which the information is put before the consumer, and thus to the way in which the information is read and understood in the environment within which the transaction is carried out". Comprehensibility represent material transparency "the specific content of the information, which must inform the consumer of the legal consequences of his choices" (para. 107). By emphasising both formal and material elements of the transparency test, AG Pitruzzella draws a de facto parallel between the methods of interpretation of the requirements of clarity and comprehensibility and these from the Unfair Contract Terms Directive - of providing plain and intelligible information to consumers. Whilst the CRD does not impose an additional obligation on online traders to provide information within a specific time frame to consumers, making the information difficult to access makes it incomprehensible (para. 109). The principle of transparency requires therefore that consumers have access to information on how to contact online traders in a "simple, efficient and relatively rapid manner" (para. 110).

No additional formal requirements in the Member States

Finally, due to the maximum harmonisation of the CRD, the Member States are of course not allowed to draft additional formal requirements for online traders on how to provide information to consumers and what should the content of that information be. Thus, Germany could not oblige traders to always facilitate a phone line for the purpose of communicating with consumers (para. 114).

This is a very practical interpretation of the provisions of the CRD, which should facilitate sufficient flexibility for online traders to choose which methods of communication suit them best, but also make it future-proof when new means of communication will be created. It does protect traders in cross-border trade, as well, from having to face additional formal requirements set by the Member States. An interesting comment was made on the meaning of transparency, as it goes quite in depth into explaining its requirements and their relation to the duty to inform. Let us see what the Court will take on board from this opinion.

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