Case C‑380/19 (available here)
concerned DAÄB – a German cooperative bank – and the way that it provides mandatory
information to consumers. According to Article 13 of the Alternative Dispute
Resolution (ADR) Directive, traders are obliged to inform consumers about the
ADR entity by which the trader is covered, when the trader commits to or is
obliged to use those entities to resolve disputes with consumers. According to
the same provision, traders are obliged to provide this information on their
website ‘when one exists’. In addition, ‘if applicable’, this
information must be included in the general terms and conditions of contracts
between the trader and the consumer. The problem in this case revolved around
the fact that DAÄB’s terms and conditions (available on its website) do not
include information on its willingness or obligation to take part in a dispute
resolution procedure. That information appears, however, in another tab on
DAÄB’s website, as well as in another document that is sent to the consumer when
a contract is concluded. This document lists the services and prices offered by
DAÄB. Besides, although DAÄB operates a website, it does not conclude any
contracts with consumers via that website. The referring court therefore
questioned the meaning of the terms ‘when one exists’ and ‘if
applicable’ present in Article 13 of the ADR Directive. The court asked the
CJEU whether the trader must provide the information
regarding ADR on its website even if it does not use it to conclude contracts
and, if so, whether it is sufficient that the trader provides the relevant
information somewhere else on the website rather than on the terms and
conditions available.
The CJEU claimed that the terms used by the legislator are unambiguous:
if the trader has a website, the information must be provided on that
website (para 24). Besides, the information must not only be provided on
the website but specifically in the terms and conditions when they are
available (para 29). To support this conclusion, the CJEU invoked the terms
used in other language versions of the ADR Directive (such as the Polish,
Spanish, English, Portuguese, Dutch and Italian – para 24). Therefore, the duty
to inform present in Article 13 is not correctly performed if the trader
provides the relevant information somewhere on its website or in a separate
document but not in the terms and conditions, like the case in question. Furthermore,
the CJEU invoked the Consumer Rights Directive to raise a point regarding the
moment in time when the information should be provided to the consumer.
According to the CJEU, a joint interpretation of Article 13(2) of the ADR
Directive and of Article 6(1)(t) of the Consumer Rights Directive dictates that
it is not sufficient that the consumer receives the information regarding ADR
simply at the time of the conclusion of the contract, regardless of whether it
is in the general terms and conditions or in another document. To ensure a
proper understanding of the information and to protect the free formation of
consent, the consumer must be given this information ‘in good time before
the contract is concluded’ (para 33).
While
this is a short and straightforward case, it is interesting for several
reasons. First, the CJEU once again showed that the different language versions
are relevant in the interpretation of EU law (see also, for example, case
Amazon EU). Second, the CJEU seems to assume a
unified and rather formal notion of general terms and conditions. It seems that
general terms and conditions in the sense of the ADR Directive are only those
terms that are included in a document titled ‘general terms and conditions’.
There are other possible interpretations, such as the one adopted by the Regional
Court of Düsseldorf regarding this case, which considered that terms and
conditions can consist of different documents, regardless of their designation.
Finally, the CJEU introduced a discussion on the timing of the provision of
information and it distinguished between information to be provided before the
conclusion of the contract and information to be provided upon the conclusion
of the contract. These two moments are often left undistinguished in practice.
