Brussels, 12/03/2012 (Agence Europe) - The commercial practices of a supplier which consist of making the information regarding a contract available to the client solely via a hyperlink leading to the supplier's website at the time of the conclusion of the contract itself, without actually making sure that this information has been received, do not comply with the conditions laid down by directive 97/7/EC (consumer protection in the framework of distance contracts), says Advocate General Paolo Mengozzi, in his conclusions on case C-49/11, which were returned on Tuesday 6 March.
The Court of Justice was asked by the Higher Regional Court of Vienna (Austria) about its interpretation of the above-mentioned directive, which provides, amongst other things, that the professional must provide the consumer with certain information before the contract is concluded (identity of the supplier, essential characteristics of the good or service, price and delivery costs, payment details, conditions for exercising cancellation right, etc.).
Amongst other things, the directive states that "the consumer must receive written confirmation or confirmation in another durable medium available and accessible to him of [this] information, in good time during the performance of the contract, and at the latest at the time of delivery where goods not fit for delivery to third parties are concerned, unless the information has already been given to the consumer prior to conclusion of the contract in writing or on another durable medium available accessible to him". The Court was asked here about the notion of "durable medium".
In his conclusions, the advocate general states that in this case, the website to which the supplier referred the customer to provide information about the subscription contract to its services cannot constitute a "durable medium" in the sense of the directive, the main purpose of which is to protect consumers. This requires the provision of information to respond to two vital requirements: - the client must "receive" the information automatically "without having to play an active role of any kind in order to obtain it" (for example, having to click on a hyperlink directing him to their website stating the information); - he or she must "acquire control of the information", which must remain "available to him under reliable terms and for an appropriate period of time" to allow him, if necessary, to exercise his rights (for example, those of withdrawing from the contract). This gives rise to the obligation to provide information on a "durable medium". However, in this instance, he points out that "by its very nature, a normal webpage is not placed under the control of the person who consults it, but under the control of the person who publishes it, who may at any time modify or delete it at will. The fact that the user may possibly act to print or store the page before it can be changed does not alter the situation: in those circumstances, in fact, the durable medium (the printed or stored version of the page) would be generated by the user and not the vendor, as required by the directive". In the vast majority of cases, the Court follows the conclusions of the Advocate General. (FG/transl.fl)