Legal requirements for contact details online traders have to offer
A case law update on Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Amazon EU Sarl, Case C-649/17, available on the EU website.
What was the case about?
This case involved a dispute between the German Federal Union of Consumer Organisations & Associations and Amazon. The issue raised concerned the means by which consumers could contact Amazon. The Consumer Rights Directive requires that before consumers are bound by a distance contract they must be given certain information, this includes:
“the geographical address at which the trader is established and the trader’s telephone number, fax number and email address, where available, to enable the consumer to contact the trader quickly and to communicate with him efficiently …” [Article 6(1)(c)]
The above requirement had been written into German law, and also into UK law by means of the Consumer Contracts (Information, Cancellation & Additional Charges) Regulations 2013 (CCRs), s13(1)(c), Schedule 2, para (c).
Under the Amazon ‘contact us’ page, consumers were offered three options:
- to send an email
- to make contact by phone
- to start an online chat.
If the phone option was selected, the consumer was invited to leave their telephone number to enable Amazon to call them back. Consumers were also offered general helpline numbers but accompanying text implied that this would not be the quickest and most effective method to use.
The Federal Union argued that Amazon did not meet the legal requirements with regard to making a telephone number available and did not offer a fax number at all. Their action to make Amazon change had not succeeded and they had appealed to the German Federal Court of Justice who referred the question to the ECJ for guidance.
What did the court decide?
This matter had already received a preliminary opinion from the Advocate General in February 2019, which did not agree with the Federal Union’s interpretation of the Consumer Rights Directive.
The full Court of Justice of the European Union (CJEU) hearing, in July 2019, also ruled against the Federal Union, deciding that (paragraph 53):
“Article 2(7) & (8) does not imply an obligation for traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them and requires that number, the fax number or their email address to be communicated only where those traders already have those means of communication with consumers.
Article 6(1)(c) must be interpreted as meaning that, although that provision requires traders to make available to consumers a means of communication capable of satisfying the criteria of direct and effective communication, it does not preclude those traders from providing other means of communication than those listed in that provision in order to satisfy those criteria”
What does this mean for advisers?
Consumers shopping at a distance should always have access to means of communication that will enable them to contact the trader quickly and to be able to communicate with them efficiently.
As means of communication develop this may not always entail the traditional methods of phoning or faxing.
It is important that a consumer is able to access ‘contact us’ information and that the information provided enables them to make contact with the trader to resolve any dispute. A trader failing to provide this information, or providing methods that do not work, is likely to be in breach of the CCRs. Breaches can be reported to trading standards as they have responsibility for enforcing the legislation. Trader guidance on the regulations is available from the government and also the Chartered Trading Standards Institute in its Business Companion series.
A distance contract is defined in r5 of the CCRs as one where the consumer and the trader are not face-to-face when the contract is made, for example, contracts made online, over the phone or by post. This could include downloading a game onto a mobile device or accessing products via social media, such as from Facebook. Due to advances in technology, this type of communication is now widely used and in many instances, has replaced more traditional methods of shopping. The actual definition also requires:
- an organised distance sales or service-provision scheme under which the contract has been concluded, AND
- the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded
This means that traders who take the odd order over the phone or by post but mainly operate from a retail premise, may not conclude distance contracts because they do not have an organised system for doing so. What amounts to an organised distance sales scheme is not defined and so the systems and operations of the business would have to be considered. Having standard letters, emails or faxes that are sent to potential consumers who then order using them, could be indicators of such a scheme. It is the conclusion of the contract which must be at a distance, the performance could be face to face. For example, ordering something online to collect in store.
Kate Hobson is a consumer expert in the Expert Advice Team at Citizens Advice
