For online and off-premises sales contracts, a platform is free to choose the means of communication it sets up in order to ensure effective, clear and comprehensible communication with the consumer, Advocate General Giovanni Pitruzzella stated in his Opinion delivered on Thursday 28 February (Case C-649/17).
The German Federation of Consumer Associations brought an action before the German courts seeking a declaration that Amazon EU, which operates a platform selling products exclusively on the Internet, is in breach of Directive (2011/83) on consumer protection.
The Directive requires the trader to provide, in addition to a postal address, a telephone number and, where applicable, a fax number and e-mail address in a clear and comprehensible manner.
However, according to the German Federation, at the stage prior to the conclusion of the online sale on the Amazon platform, no fax number is indicated on the site and no telephone number is immediately available; it can only be viewed after the consumer has taken a series of actions.
The Court will determine whether the list of means of communication included in the Directive is exhaustive. The same applies to the expression "where available", which refers to the means of communication between the trader and the consumer in distance and off-premises contracts.
Mr Pitruzzella agrees with Amazon. In his view, what matters is not so much the means of communication as its practical ability to achieve the objectives of the Directive: (i) rapid contact and efficient communication between the consumer and the trader, (ii) the provision of clear and comprehensible information.
The Advocate General therefore proposes that the Court should declare that, for the contracts in question, the list of means of contact (telephone, fax, e-mail) in the Directive is only illustrative. The trader is therefore free to choose the means available to the consumer, including means not expressly mentioned in the Directive, such as an online chat system or an automatic call-back facility set up by Amazon, provided that the objectives of the Directive are achieved.
According to Mr Pitruzzella, under the trader's obligation of transparency, the information provided by the trader concerning the means of contact available to the consumer must be accessible in a simple, effective and reasonably rapid manner. Thus, navigation which, because of its complexity, would make it difficult to access this information would be incompatible with the Directive, which aims to ensure an ever higher level of consumer protection.
As for the meaning of the expression "where available", the Advocate General proposes that the Court declare that this expression implies the absence of an obligation for the trader selling goods online to create a new telephone line or e-mail address. And this expression does not mean "where they exist in the business organisation".
Furthermore, according to the Advocate General, the German legislation infringes EU law by imposing on the trader an obligation, not provided for in the Directive, to systematically make a telephone line available to the consumer. (Original version in French by Mathieu Bion)