[co-author: Nikolaus Von Bargen]

The European Court of Justice (CJEU) has ruled that online sales platforms are not necessarily obliged to always provide consumers with a contact telephone number in order to meet statutory obligations. Other means of communication via which the consumer can communicate quickly and efficiently with the company may also be sufficient.

Background

The plaintiff, a German consumer protection association sought a declaration before German courts that an online sales platform was violating its statutory obligation to provide consumers with an efficient means of making contact. In particular, the association alleged that consumers were not informed in a clear and understandable manner of the platform’s telephone and fax number. According to the association, the callback service that was set up did not fulfil the duties to provide information as many steps were required to contact with the company. It stated that, under German law, a businessperson was obliged to always provide a telephone number before concluding a consumer contract in cases of distance or off-premises selling.

The German Federal Court of Justice sought clarification from the CJEU on whether Consumer Rights Directive 2011/83/EU precludes a provision of national law such as this and whether an online sales platform can rely on other means of communication such as online chat or a call-back system.

Ruling

The CJEU rules that an online sales platform is not obliged to provide the consumer with a telephone number; instead, it is free to choose the means of contact. It states that the Consumer Rights Directive precludes such a limiting provision of national law and that, under the Directive, the decisive point is that direct and efficient communication is guaranteed. The Court holds that the Directive does not oblige a businessperson to set up a new telephone, fax connection or email account in order to enable the consumer to make contact. The provision of such numbers or of an email address is held to be obligatory only if the businessperson already had these means of communication with the consumers at his or her disposal.

In overview, the CJEU clarifies that the purpose of the Directive is to ensure a high level of protection for consumers, but that there should be a balance between a high level of protection for consumers and the competitiveness of businesses. The Court asserts that any unconditional obligation on the part of the businessperson to always provide the consumer with a telephone number or even to set up a new telephone connection or email account seems disproportionate. It finds that, provided direct and efficient communication between the consumer and the businessperson is enabled, the Directive does not preclude selecting an alternative means of communication.

Finally, the CJEU takes the view that it is a matter for the national courts to judge whether the means of communication provided to the consumer enable him or her to contact the businessperson quickly and efficiently and whether the information provided in this regard is clear and understandable.

Comment

With this ruling, the CJEU rejects a narrow interpretation of the duties of businesses in the area of customer service. On safeguarding consumer interests, the CJEU emphasises once more the importance of a proportionate balance between consumer protection on the one hand and the freedom to conduct a business on the other (cf. CJEU, judgment of 23 January 2019 (C‑430/17) – Walbusch Walter Busch, margin no. 41 f.). Also in view of the rapid development of means of communication in the digital era, this ruling is good news for ecommerce.

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