AG: online chatbox and callback system can replace fax and telephone

If you place an order on the Amazon e-commerce platform, you will not receive a fax number prior to ordering and the phone number is difficult to access because several actions have to be performed and some questions have to be answered to obtain the phone number. According to a German consumer organisation, this is in breach of the information obligations under German consumer legislation, a transposition of the Consumer Directive 2011/83/EU of 25 October 2011, and it, therefore, filed a complaint against Amazon. The case was referred to the Court of Justice in Luxembourg, which now has to decide on the interpretation of the Consumer Directive.

Mandatory information to consumers in the case of distant selling

For distant contracts such as Amazon, the Consumer Directive requires the trader to inform the consumer in a clear and comprehensible manner. Article 6(1)(c) of the Consumer Directive requires the consumer to be informed of:

the geographical address at which the trader is established and the trader’s the telephone, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently.

The German Bundesgerichtshof requests the Court of Justice to clarify the exhaustive or non-exhaustive nature of the means of communication listed (telephone, fax and e-mail) and the interpretation of the words "where available" in this provision of the Consumer Directive. Before the Court of Justice gives its ruling on the matter, the Advocate General delivers a non-binding opinion.

Interpretation of the Consumer Directive

The Opinion of Advocate General Pitruzzella was recently published.

A high level of consumer protection

In his conclusion, he first stresses that the Consumer Directive should be interpreted in a way that provides a high level of consumer protection, without restricting the trader's organisational freedom if this is not strictly necessary to ensure such a level of protection.

Dual purpose in interpretation

Then, when interpreting the Consumer Directive, its objectives must be taken into account and, according to the Advocate General, the objective of the provision in question is twofold. On the one hand, information must be provided to consumers in a clear and comprehensible manner and, on the other hand, consumers must be able to communicate quickly and efficiently with the trader.

1. First objective: providing clear and comprehensible information

As regards the first objective, Advocate General Pitruzzella states that information must be easily accessible. This is, according to the Advocate General, the case on the Amazon e-commerce platform, as it would be incompatible with the objective of the Consumer Directive to consider that information is less accessible because further browsing is required on a website to obtain the telephone number.

2. Second objective: being able to communicate with the trader quickly and efficiently

As regards the second objective, Advocate General Pitruzzella states that the means of communication listed (telephone, fax and e-mail) are only examples. Amazon does provide an online chatbox and an automatic callback system and, according to the Advocate General, these are contemporary variants of, respectively, a fax and a call centre service. According to Pitruzzella, Amazon is not obliged to make the listed means of communication available to consumers, provided that these contemporary variants are also able to achieve this second objective.

The e-commerce Directive 2000/31/EC of 8 June 2000 also contains a provision similar to Article 6(1)(c) of the Consumer Directive. This Directive requires the service provider to provide "details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner". In 2008, the Court of Justice ruled that this information does not necessarily have to be a telephone number, but can, for example, also be an electronic contact form.

Interpretation of “where available”

Thus, in the case of Amazon, according to Advocate General Pitruzzella, the absence of a fax number and the difficulty of accessing the telephone number is not contrary to the European Consumer Directive, but the question remains how to interpret the words “where available” in Article 6(1)(c) of the Consumer Directive (“the trader’s the telephone, fax number and e-mail address, where available”).

Advocate General Pitruzzella considers that the words "where available" should be read as "where they have been made available to consumers" and not as "where they exist within the trade organisation". In other words, a trader, in this case Amazon, is not obliged in case of a distant contract to activate a new fax line or telephone line for consumers, nor to make an existing fax line or telephone line available to consumers within the company.

Impact on interpretation of similar Belgian provision

Like German law, in Belgium the Economic Law Code (“Wetboek van Economisch Recht”)also requires the consumer to be informed of the trader's telephone number before concluding a distant contract. Thus, Article VI.45, 3° of the Code stipulates that the company must provide "the geographical address where the company is established, the telephone number, fax number and e-mail address of the company, where available" to the consumer in a clear and comprehensible manner.

Ultimately, the judgment of the Court of Justice will also have an impact on the interpretation of this provision of the Code. For the time being, we have to wait for the judgment of the Court of Justice and see whether Advocate General Pitruzzella will be followed by the Court. The Advocate General's opinion is not binding.

Read here the press release of the Court of Justice.