Online traders do not have to provide a telephone number to consumers in all circumstances: AG Opinion

March 4, 2019

The Advocate General has issued an opinion in Case C-649/17 Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Amazon EU Sàrl. The opinion proposes that the Court of Justice of the European Union rule that e-commerce platforms such as Amazon do not have to make available telephone numbers to consumers in all circumstances.

However, the Advocate General also said that consumers must be guaranteed the choice of several different means of communication available for them to use, as well as as rapid contact and efficient communication.  The information about those methods of communication must be accessible, clear and comprehensible.

Amazon’s platform to sell goods and services operates exclusively online. A German consumer protection federation brought an action against Amazon saying that it had breached the requirements in the German legislation implementing the Consumer Rights Directive 2011/83/EU to provide a telephone number for consumers to use. It did not consider an automated call back facility or online chat service to be sufficient.

The issue was referred by the German courts to the Court of Justice of the European Union. The questions for court concerned the correct interpretation of the expression “where available” in the legislation in connection with the means of communication between consumers and traders in off-premises and distance contracts, and whether the list of means of communication (telephone, fax, email) is exhaustive, as well as the scope of the obligation of transparency.

The  Advocate General said that EU law must be interpreted in such a way to ensure the highest possible level of consumer protection without affecting a trader’s organisational freedom, except to the extent strictly necessary to achieve that level of protection. Therefore, the Advocate General stated that effective consumer protection is not achieved by imposing a particular contact method but by ensuring consumers are able to make use of the most effective communication channel for the environment in which the transaction is carried out. Imposing a particular method may place undue burdens on the trader concerned.

The Advocate General was more concerned with the ability of the provided contact methods to meet the objectives of the Consumer Rights Directive: (a) rapid contact and efficient communication between consumers and traders and (b) providing clear and comprehensive information.

Therefore, the Advocate General proposed that the court rule that the list of communications is illustrative and traders can choose which they make available. There should however be several methods available so that the consumers can choose.

The trader should ensure that the consumer understands unequivocally what contact methods are available. Information must be readily accessible.  Therefore the court should rule that in accordance with the requirement of transparency, the information provided by the trader on the means of communication available to the consumer must be easily, effectively and relatively quickly accessible by the consumer.

Regarding the meaning of the words “where applicable”, the Advocate General concluded that where a trader has a telephone line, the number does not necessarily have to made available to the consumer. Furthermore, the requirement does not impose an obligation on traders to set up a new telephone or fax connection or email account if they decide to enter into distance contracts.

Finally, the Advocate General proposed that the court rule that the Consumer Rights Directive prevents national legislation imposing an obligation on traders which is not set out in the Directive.