Thursday, 13 September 2018

Speed dial, sweeping prohibition - CJEU in C-332/17

Today, with its decision in case C-332/17, the Court of Justice went back to article 21 of the Consumer Rights Directive (2011/83), stipulating that Member States must establish rules to the effect that

where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate.

 Last year (case C-568/15), the Court had already had the chance to confirm that the provision meant that the consumer should never be required to pay more than the basic rate in order to contact their contractual counterpart - even if the trader made no profit from the additional costs. The Directive's provision, the Court said, must be interpreted as aiming to prevent the imposition of unnecessary hurdles on consumers, likely to hinder their exercise of their contractual rights. 

In the case decided today, a company had made available two different customer care numbers - a regular number, available at the basic rate, and a speed dial number (we assume, pre-installed as such on the consumers' telephones) at extra cost. The referring court doubted whether this practice could be considered at all admissible under the Directive, and if so, whether transparency would require that the consumer be informed wherever possible about the existence of the basic-rate number. 

The Court of Justice, however, saw no need to delve into matters of transparency since it concluded, quite swiftly - ie without an AG opinion, and also without much argumentation - that the diversification operated by the trader in question was directly incompatible with the Directive. Given the Directive's protective aims and full harmonisation nature, the Court reasoned, national variations should not be tolerated (para 26-28). Furthermore, given that the Directive expressly declares its protective provisions to be of mandatory nature, the fact that consumers would choose to pay extra for the speed-dial number is immaterial to the Court's assessment: consumers cannot waive the rights conferred upon them by the Directive (32).

Therefore, the Court concludes, under the Directive, traders are not allowed to propose any post-contractual  helpline at a rate higher than the basic rate, not even when a basic-rate alternative is provided and consumers are clearly informed of its availability. So far, consumer choice does no seem to be the most en vogue item in this fall's fashion trends. A nice evening to our readers!

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