"Initial commitment period" of two years in phone subscriptions - aka when is long enough long enough? CJEU in C‑612/23

 Many readers will have had the experience - signing up for a new mobile (phone) contract and opting for the 2-year commitment in order to obtain the best terms, and then again starting a new contract with the same provider when a new and more attractive offer comes about. What happens then with the remaining months on the new contract?

Vodafone Germany thought, we learn through xxx, that these months should just be added to the next contracts. In the case of the two consumers on behalf of whom the German Verbraucherzentrale brought a case, the new contracts they signed after upgrading to a new device and service level were drafted as including a minimum commitment of 26 months, in one case, and "24 months after the expiry of the original commitment period" in the other case. 

German courts disagreed on whether this extension, which meant that even though the parties had agreed mutually to a new contract the old contract would "live on" in terms of commitment, was in line with the Universal Services Directive, according to which (article 30 para 5)

Member States shall ensure that contracts concluded between consumers and undertakings providing electronic communications services do not mandate an initial commitment period that exceeds 24 months. Member States shall also ensure that undertakings offer users the possibility to subscribe to a contract with a maximum duration of 12 months.

Was this maximum "initial commitment" period, the ECJ was hence asked, limited to the first contract between a consumer and a service provider, or did the same capping also apply to subsequent contracts, so that they should not (directly or indirectly) bind the consumer for more than 24 months?

The Court begins its analysis by acknowledging (para 30) that the different language versions may point in more or less ambiguous directions: whereas in some versions it is clear that the rule was meant to regulate *commitment periods* irrespective of contractual form, in some other languages "initial" could refer to both the period and the contract, so that only the first contract would be covered by the restriction. The task is then to solve this ambiguity in a way that secures uniform application throughout the Union. 

In the following paragraphs, the Court takes a deep dive in the competitive reasons behind the rule, under the Universal Services Directive in the original formulation as well as under the more recent amendments and finally the new Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36).

The gist of the reasoning is that the rule is meant to make sure that consumers should be able to "change providers when it is in their interests... without being hindered by legal, technical or practical obstacles, including contractual conditions, procedures, charges and so on."(recital 47 Dir 2009/136) While reasonable minimum contractual periods are allowed, they should not be used to make it more difficult "potentially for long periods, for consumers to change provider"and thus to deprive them "of the possibility to take full advantage competition in the field concern" (para 33).

While it can be considered that after the first contract the consumer has sufficient information about the provider, this doesn't mean that they should be prevented from changing provider "if a more attractive offer were to present itself" (para 34). 

This leads the court to conclude that, considering that the level of protection afforded to consumers should not be lowered by their choice to enter a second contract with the same provider (para 35), the provision should be interpreted to mean that "initial commitment period" applies not only to the first contract between a provider and a consumer, but also to any successive contract between the same parties, "including when it was signed and put into effect before the expiry of the initial contract". 

As a rather habit-driven and not so savvy consumer who tries to use their device for at least four to five years (and encourages all readers to do the same!), this blogger has never experienced similar issues. However, it would be interesting to see whether the problem was typically German or also present in other jurisdictions: one can see how it can be tempting for companies to have their cake (the new contract) and eat the last slice of the previous cake too. According to the Court's overview, at least the Italian and Portuguese language version would seem to have left abundant space for an ambiguous interpretation. Wonder whether there will now be hundreds of consumers potentially claiming two or a few months worth of subscription as undue payments? Please let us know if you have stories on this!

AG opinion in Wind Tre: aggressive practices require active conduct

On the 31^st of May the AG Campos Sánchez-Bordona's opinion in the Wind Tre cases (C‑54/17 and C‑55/17) was published. This is the first case where the meaning of aggressive commercial practices is discussed, making it highly important. Before Wind Tre the only ECJ case on aggressive practice was Purely Creative (C-428/11), in which one of the blacklisted practices was contested, without invoking art. 8-9 of the Unfair Commercial Practices Directive (UCPD, Directive 2005/29/EC).

In the Wind Tre case the issue of the relationship between sectoral legislation, such as the Universal Service Directive (Directive 2002/22/EC), as lex specialis to the UCPD and the general rules of the UCPD is discussed.

Facts of the case

The dispute concerned the marketing of mobile phones in Italy. The mobile phones came with SIM cards which had answering and internet services pre-installed, of which fact consumers had not been informed. It is important to note that there was no complaint as to the cost of these services or the information provided about their function, the complaint was about telecom companies omitting to inform consumers that these services were pre-installed.

The same practice was used by two companies, Wind Tre and Vodafone Italia, and the Italian Market Authority (Autorità Garante della Concorrenza e del Mercato, hereafter AGCM) imposed fines on the two companies for engaging in an aggressive practice. The telecom companies challenged that decision in court, claiming that the AGCM lacked competency to impose fines stating that the telecommunications authority (Autorità per la Garanzie nelle Comunicazioni, hereafter: AGCom) was responsible instead. This argument was based on art. 3(4) UCPD stating that in case of a conflict between the UCPD and other sectoral rules on unfair commercial practices, the latter will prevail and apply.

The case reached all the way to the Council of State (Consiglio di Stato) which ruled in favour of the competence of the AGCM stating that the practice was aggressive within the meaning of the Italian Consumer Code (transposing the UCPD). It argued that even though sectoral legislation of the telecommunications sector was also breached, the case in question presented a ‘progressive harmful conduct’, which gave rise to a more serious infringement, thus making the application of the Consumer code, instead of the sectoral legislation, appropriate. (para 25)

Questions

     The Italian court referred 7 questions, which the AG Campos Sánchez-Bordona, with the agreement of all parties, summed up into the following two groups (para 32).

1.  Can the conduct of the telephone operators be classified as an ‘unsolicited supply' (as per point 29 of Annex I of the UCPD) or an aggressive commercial practice?
2. According to art. 3(4) UCPD should the UCPD cede to other EU rules, and, if so, to national provisions enacted in implementation of those rules?

The first group of questions refers is of a substantive nature as to whether the practice in question can be characterised as aggressive according to the UCPD; either using the blacklist of the UCPD, or by using art. 8-9 UCPD.

The second group of questions refers to the relationship between the UCPD and other EU sectoral legislation as lex specialis.

AG's Opinion

In answering the first question, AG Campos Sánchez-Bordona provides us with what has been the most detailed analysis of the elements of aggressive commercial practices by the Court to this day. 

Inertia Selling

He begins to first examine whether the practice in question can be caught by the blacklist, and specifically point 29 forbidding inertia selling. According to the AG, there are two conditions to satisfy simultaneously: 1) unsolicited supply and 2) unlawful demand of payment (para 44).

From the facts it can be established that the phone operator had not properly informed consumers on the pre-installed services on the sim card, meaning that consumers could use them without configuring them. AG Campos Sánchez-Bordona examines whether this supply, of which consumers were not informed of, qualifies as ‘unsolicited supply’. In his opinion ‘unsolicited’ means more than not being provided with essential information on a service, it means that the consumer was not aware of its existence (para 48).

The AG finds that a consumer (and not the average consumer) has no reason to expect that services have been preinstalled, if he has not been informed thereof and which he has to opt out of by using a process which he is likely to be unaware of (para 53).

Hence, whilst in this case unsolicited supply is possible, the AG does not find the same for the demand for payment. In his opinion not any demand for payment could fulfil the conditions of point 29, but it needs to be an undue request for payment. The referring court specifies that there was no complaint as to the cost of the services or the information about them, only about the lack of information about the pre-installation.

AG Campos Sánchez-Bordona argues further that the average consumer could expect that the SIM card purchased would be able to provide him with services about the costs of which he has been informed. 
It is worth noting that the AG makes reference to the average consumer in the context of the blacklist, where the average consumer test is not meant to apply. This goes to show that the blacklist does not offer the legal certainty promised.

Based on the above reasoning, point 29 of Annex I of the UCPD on inertia selling is not applicable. The next step is to examine whether the practice can be caught by art. 8-9 UCPD.

Aggressive Practices

The focus is on the practice in question being one of omission of information.

AG Campos Sánchez-Bordona looks to the factors of art. 9 UCPD to determine what would qualify as a practice using the notions of: harassment, coercion or undue influence. Out of art. 9 UCPD the AG deduces that harassment and coercion cannot be applied in this case as they require ‘active conduct, which is not present in the case of an omission of information’ (para 64).

It is not clear how the AG reaches that conclusion, as the factors of art. 9 UCPD apply for all three categories of harassment, coercion and undue influence without distinction. Also, even the omission of information requires an active choice of the trader to omit that information, so one could argue that active conduct is not entirely absent.

The AG continues to examine solely whether the practice can be caught under the concept of undue influence. Undue influence is the only one defined in UCPD in its art. 2(j), unlike harassment and coercion.

Undue influence refers to exploitation of a position of power which significantly limits the ability of the consumer to make an informed decision. The AG differentiates between two different kinds of positions of power (para 67):

1. Exploitation of a position of power which allows the trader to infringe the consumer’s freedom when it comes to buying a product.
2. Position of power held by a trader who, following the conclusion of the contract, may claim from the consumer the consideration which the latter undertook to provide on signing the contract.

Consequently, the AG defines a position of power in undue influence as both applying in pre-sale and post-sale conditions. What is to be noted is the focus on the fact of the conclusion of a contract, of consideration of the terms, that is the use of contract law terms through which aggressive practices seem to be defined. However, aggressive practices are broader than that, to the extent that they cover all transactional decisions of the consumer and are not limited to the decisions to enter into a contract.

The opinion explains that the aim of prohibiting aggressive practises is, in essence, protecting the freedom of contract, as consumers should be bound only by obligations that they freely entered into. So the criterion is whether the omission of information about the pre-installation impaired the freedom of choice of the consumer to the extent, where he accepted contractual obligations he would not have otherwise (para70).

AG Campos Sánchez-Bordona found the practice not to be aggressive, as according to him, the practice was not sufficient to impair the freedom of the consumer to such an extent that he would not have entered the contract. The AG does not elaborate on how he reached that conclusion or what is the standard against which it is weighed. This view of aggressive practices appears to raise the standard, making it more difficult to show that impairment of the freedom of choice of the consumer is indeed significant enough.

Lex specialis

Given the answer to the first two questions, there was no reason to examine the rest, on the conflict of law, yet the AG did submit his observations.

In these he makes the accurate observation that the UCPD is not designed to fill the gaps that sectoral legislation leaves; instead it offers its own stand-alone system of protection which exists in parallel with the sectoral legislation (para 94). This sets the tone also for art. 3(4) UCPD that should be interpreted strictly as focus should be on maintaining a high level of protection. Therefore, art. 3(4) UCPD is better conceptualised as regulating conflict between provisions and not systems of sectoral legislation (para 111). In this case, it means that the existence of sectoral legislation that covers aspects of unfair commercial practices does not preclude the application of the UCPD.

AG Campos Sánchez-Bordona didn’t find a conflict in this case between the UCPD and the Universal Service Directive, but rather the need for them to be applied jointly (para 129). The Universal Service Directive regulates the information requirements, which are crucial for determining whether there was unsolicited supply as per point 29 of the Annex I of the UCPD.

Conclusion

This is an intriguing case, as it is the first of its kind for aggressive practices in the UCPD. It reveals contrasting interpretation of the UCPD notions and objectives between the Member States and AG Campos Sánchez-Bordona. Italian authorities viewed aggressive practices as a tool for penalising the abuse of power by the trader. The AG on the other hand interpreted the same provisions focusing on protecting consumers' contractual freedom, especially as applied to the decision to enter into a contract. It remains to be seen what the Court will decide and this blog will follow the developments with great anticipation.

Changes allowed, within limits - CJEU judgment in case C-326/14 Verein für Konsumenteninformation v A1 Telekom

Yesterday, the Court of Justice of the EU handed down its judgment in the Austrian case of Verein für Konsumenteninformation v A1 Telekom Austria AG. The case concerns an action brought by the Austrian consumer association (VK) regarding standard terms used by A1 Telekom. VK submitted that these terms were not in line with EU consumer law, insofar as they stipulated that A1 Telekom's customers were not allowed to withdraw from their contracts in case charges were modified in accordance with an annual consumer price index made by the Austrian Institute for Statistics. 

As we reported earlier, Advocate General Cruz Villalón concluded that this type of price adjustment clause did not necessarily imply a modification of contractual conditions under the EU's Universal Service Directive, ‘in so far as the statement of the consideration payable by the subscriber as the ‘index-linked price’ is sufficiently foreseeable, transparent and legally certain to support the conclusion that there has been no change in the subscriber’s contractual position’. According to the Advocate General, the national court would have to assess whether these conditions were met.

The CJEU follows AG Cruz's Opinion and holds that:

'Article 20(2) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, must be interpreted as meaning that a change in charges for the provision of electronic communications networks or services, resulting from the operation of a price adjustment clause contained in the standard terms and conditions applied by an undertaking providing such services, the term providing that such a change applies in accordance with changes in an objective consumer price index compiled by a public institution, does not constitute a ‘modification to the contractual conditions’ within the meaning of that provision, which grants the subscriber the right to withdraw from the contract without penalty.'

Modification or execution of the contract? Price indexation terms before the Court of Justice (AG opinion in C‑326/14)

While legislative harmonisation of private law in Europe has seemingly been put on hold for the time being, existing European measures do not cease to bring "irritations" into the subject and its vocabulary. 

Last week, for instance, AG Cruz Villalon was confronted with the question of what entails a contractual modification under Directive 2002/22 CE, or the Universal Service Directive (here, USD), and in particular its article 20(2), according to which when a modification of contractual conditions occurs, users must be entitled to terminate the contract with no penalties attached. 

The question in Verein fuer Konsumenteninformation (here, the VK) v A1 Telekom Austria AG, the case we will be discussing here, concerned an indexation clause- a term stating that the provider may increase the service price on the basis of the consumer price index variations as determined by an Austrian statistics institute. 

In short: the AG concluded that a price indexation clause should not be seen as allowing a contractual modification- and thus should not be accompanied by the possibility for the consumer to terminate the contract- where the said clause complies with requirements of foreseeability, transparency and legal certainty (see first para 37) such as to ensure (para 41) that that they do not in concreto modify the contract, but rather uphold the original balance.

Want to know/understand more? Read below.

The VK claimed that, under article 20(2) of the USDe, such a term should only be allowed if accompanied by a clause allowing the user to terminate the contract when a price increase was actually adopted. This is plainly the case when other kinds of adaptation clauses are included in a contract, such as clauses allowing the provider to unilaterally recalculate the price in certain situations. 

The company, on the other hand, put forward (para 21) that a price increase based on an indexing clause should not be considered as a contractual modification. The Commission endorsed this last view, adding that in this specifc case the possible variations were clearly outlined, objective and linked to an evaluation performed by an independent third party (the statistics institute).

From the legal point of view, as mentioned above, the question is how to interpret the notion of contractual modification to the ends of the USD. In other words, the question is: 

does a price increase occurring under an indexation clause represent a modification of the contract, or merely execution thereof? 

The AG, after having considered two alternative options, essentially opts for a self-standing interpretation of the concept "contractual modification" for the ends of article 20(2) USD. Let's see how. 

First, he considered whether the Unfair Terms Directive (UTD), which devotes ample attention to indexation terms, should be used as an interpretive tool. According to the AG, although the Directive can be seen to express a certain favor of the European legislator for indexation clauses, the interpretation of article 20(2) cannot be based on the UTD because that Directive only has something to say as to whether certain terms are (to be considered) fair, not on the legal nature of actions undertaken under such terms (see paras 29-30).

Having this cleared, the AG (para 35) looks into the text's plain wording. Prima facie, he says, the notion "modification to the contractual conditions" does not include a price increase deriving from the application of contractual terms. However, he goes on, such literal interpretation would deprive article 20(2) of any meaningful bite, since it would make it possible for variation clauses to deprive users of the right of termination that the provision intends to grant them. 

Thus, the concept has to be interpreted autonomously in the context of the USD. In this context, the price indexation clause should not be seen as entailing a contractual modification where the said clause complies with requirements of foreseeability, transparency and legal certainty (see first para 37) such as to ensure (para 41) that that they do not in concreto modify the contract, but rather uphold the original balance. The foreseeability prong entails that the index used should be determined by a third, independent party on the basis of objective criteria. 

In a turn that is not surprising in this context, the AG (para 40 and 45) asserts that it is for national judges to decide whether a specific term fullfils the conditions above; only in this case, should it be seen as capable of allowing price variations to take place without any contract modification in the sense of article 20(2). 

From a technical point of view, the conclusion might be dubious: how can the "transparency" of a per se valid term determine the legal nature of following actions undertaken under that term? And how exactly did the advocate general come up with the requirements of foreseeability, transparency and legal certainty (as operationalisation of "upholding of the original balance")? However, it seems that in its core the conclusion makes sense. Whether the Court will share this view, and possibly find a better way to argue it, will only be known in a few months...

Transparency in energy supply contracts - AG Wahl's opinion in Schulz (C-359/11 and C-400/11)

8 May 2014: AG Wahl's opinion in Schulz (C-359/11 and C-400/11)

During the liberalisation of the energy market, the European legislator tried to introduce a high level of consumer protection. To that end, consumers are supposed to be well-informed by their service providers as to the energy prices, their usage thereof, and they should also be protected from the threat of disconnection. In Germany, gas and electricity suppliers need to provide consumers with a standard rate for energy supply, but it was not quite certain whether they could then unilaterally vary prices. As a result, consumers started bringing up claims for reimbursement of the raised energy prices, claiming that the price increases were unreasonable. (Par. 21) German courts thought that whether the energy suppliers had a right to adjust prices unilaterally would depend on the interpretation of the provisions of the Electricity and Gas Directives, which require that contractual terms and conditions must be transparent. (Par. 1-2) The specific question is whether it is sufficiently transparent for the supplier to inform consumers about the price increase with an adequate notice and providing consumers with a right to terminate contracts. (Par. 30)

AG Wahl believes that the question as to what should be understood as a transparent contractual term and condition should NOT be answered on the grounds of the test established by the Directive on Unfair Contract Terms, in its Art. 3 and 5. (Par. 3) Instead, the AG argues for an independent assessment in light of different objectives pursued by these instruments, especially due to the fact that these energy contracts are not really governed by the freedom of contract principle, since suppliers are limited in their options to refuse to conclude a contract or to terminate it (Par. 34). AG Wahl argues therefore against using the judgment of RWE Vertrieb (see our discussion thereof here) as a guideline to solve the issue at hand (see Par. 38-47 for more details on this point). Still, the AG recognizes that in order to ensure effective level of consumer protection, consumers need to be guaranteed two rights: to terminate the contract and to challenge the reasonableness of the price increase. The second right demands that consumers are given sufficient information "concerning the reason for the price increase and the method of its calculation" (Par. 60). Moreover, the need to disclose such information may in AG's opinion deter some suppliers from unjustifiably increasing energy prices. (Par. 66) As a result, the AG advises the Court to determine that German legislator should oblige energy suppliers to disclose not only what the price adjustment will be, but also the "grounds, preconditions and scope of the price adjustment at the latest by the time that the customer is informed of the adjustment". (Par. 78)

Changing mobile phone operators while keeping same number: ECJ in C-99/09 Polska Telefonia Cyfrowa (PTC)

1 July 2010: ECJ case C-99/09 Polska Telefonia Cyfrowa (PTC)

This judgment concerned interpretation of Article 30(2) of Directive 2002/22/EC - Universal Service Directive. Pursuant to this Article:

"[NRAs - National Regulatory Authorities] shall ensure that pricing for interconnection related to the provision of number portability is cost oriented and that direct charges to subscribers, if any, do not act as a disincentive for the use of these facilities."

First of all, to all the laymen between us - what does porting numbers/number portability mean? The concept of number portability covers the facility available to a telephone subscriber to retain the same number when changing operators. (Par. 15) Most of us, at one point or another, were not happy with our (mobile) phone providers and considered making a switch. One of the factors that effectively stopped us from making that step was the fact that we did not want to go through the trouble of changing our phone number and having to let everyone we have ever met know what our new number is. Anyone who has ever lost their phone knows what a bother it is. EU authorities were aware of that and realized that consumers not being able to keep their old number (or having to pay for the switch of the number) was an obstacle to consumers' freedom of choice and effective competition. (Par. 17) That is why the Universal Service Directive required the phone providers to facilitate number portability and obligated the national authorities to ensure that the price for that service will not dissuade the consumers from making the switch. The operators may charge the consumers since they have to make certain costs to facilitate that service, but that price has to be not only compatible with the costs they made but also not dissuade the consumers from switching. (Par. 19)

In the given case a Polish company - Polska Telefonia Cyfrowa (PTC) - requested a one time fee from its subscribers for porting their number to another operator. The amount of the fee (ca. 30 Euro) was deemed to be too high by the Polish authority enforcing the Universal Service Directive: Urzad Komunikacji Elektronicznej (UKE). PTC claimed that they set the amount of the fee based on the costs they had made and therefore the fee was reasonable. UKE considered the fee to be too high for the Polish consumers.

The ECJ confirmed the view of PTC that the amount of the fee should depend on the costs encumbered by the phone providers, however, it could not be a decisive factor in estimating its height. Namely, the national authorities have a right to establish the maximum height of the fee up front, taking into account what prices dissuade the consumers from switching between operators. (Par. 21)

The ECJ decided further that: (Par. 25-26)


"(...) the NRA has the task, using an objective and reliable method, of determining both the costs incurred by operators in providing the number portability service and the level of the direct charge beyond which subscribers are liable not to use that service. Following that examination, the NRA must oppose, if necessary, the application of a direct charge which, although in line with those costs, would, in light of all the information at the disposal of the NRA, be a disincentive to the consumer."

The decision of the ECJ in this case is very clear and consumer-friendly. Even though it might seem that the PTC got the confirmation it wanted, the ECJ managed to turn the question around and put a limitation on the interpretation of Article 30(2) of the Universal Service Directive.

From a bit personal perspective (coming from Poland)... it was about time someone stood up to the Polish phone operators and limited their powers.

To settle or not to settle? - ECJ says: Settle! C-317/08 Alassini

18 March 2010: ECJ case C-317/08, C-318/08, C-319/08 and C-320/08 Alassini

The ECJ gave a judgment today in the Alassini case (ECJ C-317/08, C-318/08, C-319/08 and C-320/08) concerning interpretation of Article 34 of the Universal Service Directive. The Universal Service Directive concerns the provision of electronic communications networks and services to end-users.

Article 34 of the Universal Service Directive states:

‘1. Member States shall ensure that transparent, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes, involving consumers, relating to issues covered by this Directive. Member States shall adopt measures to ensure that such procedures enable disputes to be settled fairly and promptly and may, where warranted, adopt a system of reimbursement and/or compensation. Member States may extend these obligations to cover disputes involving other end-users.
2. Member States shall ensure that their legislation does not hamper the establishment of complaints offices and the provision of on-line services at the appropriate territorial level to facilitate access to dispute resolution by consumers and end-users.
3. Where such disputes involve parties in different Member States, Member States shall coordinate their efforts with a view to bringing about a resolution of the dispute.
4. This Article is without prejudice to national court procedures.’

The Italian government while implementing this Directive adopted mandatory settlement procedure that had to be followed by the parties in the dispute prior to instigating court procedures. In the given case the defendants have argued that the actions against them were inadmissible because the applicants (consumers) had not first initiated the mandatory attempt to settle the dispute before the settlement bodies, as required under the Italian law. The question referred by the Italian court to the ECJ was (Par. 37):

'whether Article 34 of the Universal Service Directive and the principle of effective judicial protection must be interpreted as precluding legislation of a Member State under which the admissibility before the courts of actions relating to electronic communications services between end-users and providers of those services, concerning the rights conferred by that directive, is conditional upon an attempt to settle the dispute out of court.'

The ECJ considered that matter and adjudicated that the provision of the Universal Service Directive have not been infringed by the Italian law.

The Universal Service Directive requires Member States to ensure that (Par. 38):

'transparent, simple and inexpensive out-of-court procedures are available, enabling disputes involving consumers and relating to issues covered by that directive to be settled fairly and promptly. Those procedures are always to be without prejudice to national court procedures.'

Since the Universal Service Directive does not prescribe specific nature of the out-of-court procedures which have to be introduced, it has to be concluded that Member States are not limited in making out-of-court procedures for the settlement of disputes mandatory (Par. 42). To the contrary (Par. 45):

the fact that national legislation such as that at issue in the main proceedings has not only put in place an out-of-court settlement procedure, but has also made it mandatory to have recourse to that procedure before bringing an action before a judicial body, is not such as to jeopardise the attainment of that objective. On the contrary, such legislation, in so far as it ensures that out-of-court procedures are systematically used for settling disputes, is designed to strengthen the effectiveness of the Universal Service Directive.

Further, the ECJ considered whether the Italian legislation did not infringe the principles of equivalence, effectiveness and the principle of effective judicial protection. It has been concluded that these principles aren't breached provided that (Par. 53-58):

that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.

It is for the national court to determine whether in the given cases these conditions had been fulfilled.