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The Importance of Consumer Communication in Distance Contracts

In a recent judgment, the European Court of Justice (First Chamber) analysed the methods of communication that must be made available to consumers when acquiring goods and services online and the importance of ensuring they are direct and effective.

In today’s digital era, one can see the increasing importance of distance and off-premises contracts in transactions between a trader and a consumer, without either of them having to meet in person. This is especially evident with the use of e-commerce websites, with big companies such as Amazon (the defendant in this case) and eBay paving the way as to how one can interpret the concept of purchasing items or making use of a service, as well as the relationship between the trader and the consumer.

Communication is very essential in such negotiations, as evidenced in Article 6 of Directive 2011/83/EU on consumer rights, where it stipulates that before a consumer is bound by an off-premises or distance contract, the trader has to provide the consumer with important information in a clear and comprehensible manner, which includes:

  1. the main characteristics of the goods or services to the extent appropriate to the medium and to the goods or services and;
  2. the identity of the trader, such as his trading name.

In this case an issue arose with regards to Article 6(1)(c), which states that the trader has to provide his telephone number, fax number and e-mail address, “where available” to enable the consumer to contact the trader quickly and communicate with him efficiently. Uncertainty arose regarding the German expression “gegebenenfalls” (meaning “where available”). The concern was whether this expression meant that traders, when entering in distance contracts, have to provide information solely about the means of communications that are actually available within their business, meaning that they are therefore not required to set up a new telephone number or fax connection or email account. If that is the case, would the German expression refer only to the methods of communication that are already available in the business and are used by the trader to communicate with consumers in distance contracts or does it also refer to other means of communication that are available in the business but are being used by the trader for other purposes, such as to communicate with other traders or authorities? Other important concerns that were raised include:

  1. Whether Member States can enact a provision that obliges traders to make their telephone number always available to the consumer when entering into distance contracts prior to accepting such contract
  2. Whether the list of means of communication stipulated under Article 6(1)(c) is exhaustive
  3. Whether the application of the transparency requirement under Article 6(1), where the trader is obliged to inform the consumer of the communication methods stipulated under Article 6(1)(c) in a clear and comprehensible manner, depends on the information being supplied quickly and efficiently.

Firstly, the Court ensured that the analysis of the different language versions would not resolve the issue, but rather, one has to analyze the context in which it arises, and the objectives pursued by the rules of which it is part. Moreover, it analyzed the scope of the Directive, whose aim is to ensure and effectively implement consumer rights.

Article 21 of the Directive provides that Member States cannot allow traders who operate a telephone line for the purpose of contacting consumers to charge more than the basic call rate when the consumers contact them in relation to a concluded contract. By referring to this article, the Court stipulated that it supports the interpretation of Article 6(1)(c), where it stated that when telephones are used as a means of communication by the traders with the consumers in the context of distance contracts, then the same call rate is to be imposed in a pre-contractual context.  

An important decision when it comes to the list stipulated in Article 6(1)(c) was also ruled by the Court, where it stated that it is essential for the traders to provide a means of communication that can satisfy the criteria of direct and effective communication, so that it remains in line with the aim of the Directive. Traders are also not precluded from providing other means of communication than those listed in the Article in order to satisfy those criteria; this continues to show the ever-evolving manner in which traders and consumers communicate with each other, especially when it comes to concluding distance contracts.

Finally, the Court emphasized the importance of consumers having quick and efficient communication with traders while at the same time, striking a balance between a high level of consumer protection and the competitiveness of the business environment. It claimed that traders should not be hindered from encouraging the use of other means of communication by consumers, as long as the traders are obliged to provide the information in accordance to Article 6(1)(c) and in the situation where there is a telephone number, it is made accessible in a clear and comprehensible manner.

Article written by Dr Cherise Abela Grech and Legal Trainee Mr Steve Vella.

For more information, please contact Dr Ian Gauci on igauci@gtgadvocates.com and Dr Michele Tufigno on mtufigno@gtgadvocates.com

This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.