In a recent request for a preliminary ruling in a case concerning Amazon, the Advocate General Pitruzzella (AG) has given his opinion that the Consumer Rights Directive (2011/83/EU) (CRD) requires traders to offer their consumers a choice of means of communication, but this is not confined to the trader’s telephone number. The CRD includes the trader’s telephone number, fax number and e-mail address, “where available, to enable the consumer to contact the trader quickly and communicate with him efficiently”. The AG clarified that this is therefore not limited to a telephone number, and accordingly traders may use other means of communication with consumers as long as they are consistent with the technical means of the transaction being made.
Online trades imply sufficient knowledge of interacting over the internet
The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband) brought a claim asserting that Amazon did not offer sufficient contact channels to its consumers before the conclusion of an online sale – in spite of the online sales platform’s automated call-back facility and online chat service. There was a particular concern that consumers were not provided with the company’s fax number and were also prompted to follow an identity-verification process before they could have access to Amazon’s general helpline telephone number.
The AG stated that the manner in which a trader’s obligations under the CRD are satisfied must be aligned with the features of the transaction and the technical means employed by the trader to sell. When consumers choose to contract with traders operating exclusively on the internet, they expect to come into contact with a system which requires a certain degree of knowledge for its use. For instance, when transacting with an online trader, a consumer may first have to register on the trader’s website, provide personal details for the transaction and then use a payment card or a virtual payment system in order to complete the transaction. There’s an implication therefore, that a consumer who freely chooses to interact with an online trader – as opposed to a traditional “bricks and mortar” trader – would have sufficient knowledge of the mechanisms for interacting over the internet.
The AG interpreted the CRD’s expression of “where available” in conjunction with the reason for which the information is required, namely to “enable the consumer to contact the trader quickly and communicate with him efficiently” (Article 6 CRD). In the context of an online trade, what matters is not the means of communication considered in the abstract, but the actual ability of the consumer to have access to a clear, quick and efficient communication channel with the trader. The AG reasoned that a telephone contact number should be made available only in the event that the trader has organised his business in such a way as to make a telephone line available specifically for communication with the consumer.
This is a notable example of the AG’s effort to achieve the objective of the CRD, which is to balance the high standards of consumer protection and the competitiveness of businesses. An absolute, unconditional requirement for a particular means of communication could not only harm the consumer, but be a disproportionate measure if applied to traders generally, particularly for smaller businesses that do not walk besides “Web giants like Amazon”. His opinion has generally been viewed as providing welcome clarity and flexibility for online traders, whilst at the same time providing consumers with choice and visibility over how they interact with merchants. It is yet to be seen whether the ECJ will follow suit in this regard.