Case C‑266/19 (not yet available in English;
in French here)
concerns EIS and TO, who are competitors in the business of online sales of
erotic products. The relevant claim was that EIS did not clearly inform consumers
about its phone number in the right of withdrawal model form (annexed to the
Consumer Rights Directive) and about the fact that consumers can use that phone
number to exercise their right of withdrawal, even though EIS had one and mentioned
it in a clear and legible manner on the bottom of its website. One interesting
aspect about this case is that it is originally a competition law case that, in
the referring court’s perspective, depends on an answer to a consumer law
problem. Providing wrong or incomplete information on the right of withdrawal
in consumer contracts (and therefore breaching consumer law) is considered to
be unfair competition according to German law (para 21). So, even though there
are no consumers directly involved in the dispute, the CJEU was called to interpret
a provision of the Consumer Rights Directive.
The
Consumer Rights Directive regulates the pre-contractual disclosure of available
means of communication to consumers in several provisions. Article 6(1)(c) states
that the trader must inform the consumer on means of communication ‘where
available’. Article 6(1)(h) states that the trader must inform the consumer on
the conditions, time limit and procedures for exercising the right of
withdrawal (which, according to Article 6(4), can be done through the model
form annexed to the Directive). The dispute, in this case, lied here: is a phone number used by a trader for professional purposes and shown in the homepage
of the trader’s website considered an 'available' means of communication? Moreover, should
Article 6(1)(c) and (h) and 6(4) – together with annex I point A – be
interpreted as imposing a duty on the trader to explicitly inform the consumer on a phone
number that can be used to exercise his right of withdrawal?
This
case builds on Amazon EU (see our report on it here), where
the CJEU interpreted partly the same provisions and established that an unconditional
obligation to have a phone number available to consumers is not proportional,
considering the economic context of some traders’ business model. Following the
guidelines set out in Amazon EU, the CJEU clarified, in the present case, that
the professional party who concludes a contract with a consumer via a website and
that, logically, does not use a phone number for the process of concluding that
contract (even though it has one available for other professional purposes), is
not obliged to communicate it to the consumer in the context of the
model form in annex I part A (para 36). However, interestingly, the CJEU established
an exception to this rule. According to the CJEU, if the phone number is
publicly displayed on the trader’s website in such a way that it would lead the
average consumer to think that the trader uses that phone number to communicate
with consumers in general, then it must be considered that that phone number
is available within the meaning of Article 6(1)(c) (para 37). That is the
case, for example, when the phone number is available on the trader’s website
under the heading ‘contact’. Therefore, it must also be considered that a phone
number is ‘available’ in the meaning of annex I part A and must be consequently
included in the model instructions on the right of withdrawal (para 38). In
this way, and even though the CJEU does not explicitly say it, it appears to
have privileged the protection of the reasonable expectations of consumers over
proportionality concerns.
