An e-commerce platform such as Amazon is not obliged in all cases to make a telephone number available to consumers before the conclusion of a contract (ECJ)


According to the Judgment of ECJ in Case C-649/17 (Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband e.V. v Amazon EU Sàrl), an e-commerce platform such as Amazon is not obliged in all cases to make a telephone number available to consumers before the conclusion of a contract. It is however obliged to provide those consumers with a means of communication allowing them to contact it quickly and to communicate with it efficiently.
The company Amazon EU offers the sale of various goods, exclusively via a website, in particular, in Germany, via the site www.amazon.de. It was sued before the German courts by the Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband e.V. (Federal Union of Consumer Organisations and Associations) (‘the Federal Union’). The latter seeks to have it declared that Amazon did not respect its legal obligation to provide consumers with an efficient means to enter into contact with it, in so far as it did not inform consumers in a clear and comprehensible manner about its telephone and fax numbers.
The Federal Union alleged that the Amazon callback service did not satisfy the information requirements, since consumers have to take a number of steps in order to enter into contact with an interlocutor of that company. German law requires traders, before concluding a distance or off-premises contract with consumers, to provide their telephone number in all circumstances.
In that context, the Bundesgerichtshof (Federal Court of Justice, Germany), ruling on the dispute at final instance, asks the Court of Justice whether the Consumer Rights Directive[1] precludes such national legislation and whether traders are obliged to establish a telephone or fax line, or a new email address to allow consumers to contact them. The Bundesgerichtshof also wishes to know whether traders such as Amazon may use other means of communication, such as instant messaging or telephone callback.
By the new judgment, the Court answers that the directive precludes such national legislation, by noting that that directive does not oblige traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them in all circumstances and that that directive requires that telephone or fax number or email address to be communicated only where those traders already have those means of communicating with consumers.
At the same time, the Court notes that the directive requires traders to provide consumers with a means of communication guaranteeing direct and efficient communication, those traders being able to use other means of communication than those provided for in that directive in order to satisfy those requirements.
The Court notes that the directive seeks to ensure a high level of consumer protection by guaranteeing their information and their safety in transactions with traders. To that end, the possibility, for consumers, to contact traders quickly and to communicate with them efficiently is of fundamental importance for the protection and effective implementation of consumer rights and, in particular, of the right of withdrawal.
Nevertheless, it is necessary to strike the right balance between a high level of consumer protection and the competitiveness of enterprises, as is stated in that directive, while respecting traders’ freedom to conduct a business, as enshrined in the Charter of Fundamental Rights of the European Union.
The Court considers that an unconditional obligation imposed on traders to provide consumers, in all circumstances, with a telephone number or to establish a telephone or fax line, or to create a new email address to allow consumers to contact them, appears to be disproportionate.
As regards the meaning of the expression ‘where they are available’, in reference to the three current means of communication between consumers and traders (telephone, fax, email), and despite differences between the language versions, the Court considers that that expression covers cases where traders have such a means and make it available to consumers.
Moreover, the directive does not preclude traders from providing other means of communication (such as electronic contact forms, instant messaging or telephone callback), in so far as those means of communication allow for direct and efficient communication between consumers and traders, which assumes that information relating to those means of communication is accessible to consumers in a clear and comprehensible manner.
The Court notes that it is for the national courts to assess whether the means of communication made available to consumers by traders allows consumers to contact traders quickly and to communicate with them efficiently and whether information about those means of communication are accessible in a clear and comprehensible manner. In that regard, the Court notes that the fact that a telephone number is available only after a series of clicks on the website does not, in itself, imply that the means used for giving information to consumers is not clear and comprehensible.
(curia.europa.eu)
[1] Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).

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George Kazoleas, Lawyer

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