A Lithuanian consumer in this case purchased online a ticket to an event from a ticket distributor - Tiketa. Information on the website and on the ticked delivered upon purchase to the consumer let him know that the event organiser was 'Baltic Music', their contact information and that they bear full responsibility for the event. Terms and conditions on the ticket mentioned also that if the event was cancelled, event organiser would be responsible in full for the ticket price. The entitlement to a refund of the ticket price was not contested here, but rather whether consumer could claim further damages and if yes, from whom - event organiser and/or ticket distributor? After all, the consumer made expenses to travel to the event site to only days later receive information about the event's cancellation.
Traders and persons acting on their behalf
The first question inquired about the application of the notion of a 'trader' from Article 2(2) CRD. Could this notion apply to two subjects in one case scenario: to a trader and a person acting on their behalf, and could it then mean that they both could be held liable by consumers for breach of their obligations? This is a very relevant question in the era of digitalisation, whether we consider digital influencers or online platforms as potentially acting on behalf of traders whose products they promote.
Lithuanian case drew attention to the difference between language versions of the CRD, which could result in intermediaries being considered 'traders' only in some Member States (e.g. France), as others (e.g. Lithuania) recognised a person acting on behalf of a trader as a 'trader' only if they were acting for purposes relating to their own trader, business, craft or profession. Unsurprisingly, the CJEU, following purposive construction rules - supports a broad interpretation of the notion of a 'trader', encompassing also intermediaries (paras 31-32).
More importantly, the CJEU considers that both a trader and an intermediary could be held jointly responsible for the performance of information obligations under the CRD towards consumers, even if they both facilitate provision of the same service. The Court highlights the purpose of CRD as ensuring that consumers are being informed by traders, broadly defined in Article 2(2), rather than by their contractual counterparties. Hence, if a consumer does not receive mandatory information, the intermediary cannot escape liability for breach of CRD provisions by clearly indicating their intermediary position in the transaction (contrarily, to intermediaries liability for non-conformity, pursuant to Wathelet case) (paras 33-34) (see our case note here).
Comment
What does this judgment mean in practice for the online environment is the key question here? A lot of online webshops - distributing products of other traders - could likely be seen as acting on their behalf, and thus would now have either additional due diligence duties, i.e. checking what information these traders share with consumers, or will need to start providing mandatory information themselves.
What about online platforms and digital influencers? If they were seen as acting on behalf of traders, as well, this information duty would include them, too.
Mandatory information in standard T&Cs
The answer to the second question was long awaited by the academic community: Could online traders provide mandatory information to consumers only by including it in their standard terms and conditions and asking consumers to tick a box that they have accepted these? Was that transparent provision of mandatory information?
Disappointingly, the CJEU does not condemn this standard online market practice. The CJEU focuses its reasoning on the fact that the CRD does not prescribe a method for communication of pre-contractual information to consumers in Article 6(1) or Article 8. The Court distinguishes this situation from a clearly prescribed method for communicating information after the contract was concluded - on a durable medium (para 46).
Comment
What is a missed opportunity by the Court in this case is the elaboration on the principle of transparency and its role in assessing the adequacy and effectiveness of the form in which information is given to consumers. The CJEU does not even mention transparency: whether information provided in standard terms and conditions could be perceived as provided not in a 'clear and comprehensible manner' due to it being less visible or less accessible to consumers? It seems that the answer provided on this point hinged on a technicality, rather than examine broader principles of consumer protection and its aims. Transparency remains a Cinderella before the ball, waiting for her godmother to dust her off.
