Opinion of Advocate General Pitruzzella delivered on 28 February 2019

A. EU law

5. Article 5 of Directive 2011/83, which is headed ‘Information requirements for contracts other than distance or off-premises contracts’, provides in paragraph 1 thereof:

‘Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context:

…

1. the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number;

…’

6. Article 6 of Directive 2011/83, which is headed ‘Information requirements for distance and off-premises contracts’, provides in paragraph 1 thereof:

‘Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:

…

1. 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 communicate with him efficiently …’

7. Article 21 of Directive 2011/83, which is headed ‘Communication by telephone’, provides:

‘Member States shall ensure that where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate. …’

B. German law

8. Paragraph 312d(1) of the Bürgerliches Gesetzbuch (German Civil Code, ‘the BGB’), which is headed ‘Information requirements’, provides that:

‘In the case of off-premises contracts and distance contracts, the trader shall provide the consumer with the information required under Article 246a of the Einführungsgesetz zum Bürgerlichen Gesetzbuch (Introductory Act to the BGB, ‘the EGBGB’). The information to be provided by the trader shall form an integral part of the contract, unless the parties to the contract have agreed otherwise.’

9. Article 246a of the EGBGB, which is headed ‘Information requirements for off-premises contracts and distance contracts, with the exception of contracts relating to financial services’, provides, in point 2 of the first sentence of paragraph 1(1) thereof:

‘The trader shall, pursuant to Paragraph 312d(1) of the BGB, provide the consumer with the following information:

…

1. his identity, such as his trading name, the geographical address at which he is established and his telephone number and, where available, his fax number and email address and, where applicable, the geographical address and identity of the trader on whose behalf he is acting.’

1. The nature and objectives of Directive 2011/83

20. The main objective of Directive 2011/83 is, as is apparent from Article 1⁽³⁾ and recital 4⁽⁴⁾ thereof, to contribute to the proper functioning of the internal market, striking the right balance between a high level of consumer protection and the competitiveness of businesses.

21. To that end, Directive 2011/83 approximates certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts concluded between consumers and traders.

22. Directive 2011/83 moves away from the minimum harmonisation approach in the former directives⁽⁵⁾ and aims to achieve full harmonisation,⁽⁶⁾ as a result of which the Member States may not, unless otherwise expressly provided for in the directive itself, introduce or maintain derogating provisions.⁽⁷⁾

23. The scope of Directive 2011/83 is very broad and applies, as is apparent from Article 3, ‘to any contract concluded between a trader and a consumer’ and, in particular, to all distance contracts and off-premises contracts.

24. Given the broad scope of the directive, it is reasonable to suppose that, in interpreting its provisions, distinctions may be drawn according to the context in which the trader and the consumer are acting when concluding a contract.

25. Indeed, recital 36, which concerns traders’ obligations regarding the provision of information, states that, ‘in the case of distance contracts, the information requirements should be adapted to take into account the technical constraints of certain media’, and Article 8(1) provides that, ‘with respect to distance contracts, the trader shall give the information provided for in Article 6(1) or make that information available to the consumer in a way appropriate to the means of distance communication used’.

26. Those provisions clearly contemplate a correlation between the way in which the trader communicates with consumers and the characteristics of the technical means employed in the conclusion of the transaction.

27. In the light of those observations, the characteristics of the environment in which the contract is concluded (the consumer’s home, the internet, and so on) and the technical means by which the parties enter into relations (telephone, paper documents, online platform) will have an effect on the manner in which the trader’s obligations relating to the provision of information are fulfilled.

2. The particular features of contracts concluded with traders that only operate online and the relevance of the guidance offered by the judgment of 16 October 2008 (C‑298/07, EU:C:2008:572 )

28. The defendant in the main proceedings is a platform that operates exclusively on the internet and sells a wide range of consumer goods and services.

29. When a consumer wishing to purchase goods or services selects a trader that operates exclusively on the internet, rather than a ‘traditional’ trader operating from business premises or a trader conducting business using other communication channels (such as the telephone), he will come into contact with a system which presupposes a certain degree of knowledge and which requires him to take different steps from those that are followed in the context of traditional distribution channels.

30. First of all, purchasing over the internet requires registration on the trader’s website, as well as the provision of certain personal data for identification purposes and an email address.

31. As a rule, it will be necessary to use a credit or debit card or a virtual payment system in order to pay for the goods or services.

32. Consequently, a consumer who decides to have recourse to a trader that operates exclusively on the internet will have sufficient knowledge of the mechanisms for interacting over the internet.

33. Moreover, when a consumer has recourse to a trader that operates exclusively on the internet, he freely makes a particular consumer choice, since the goods and services which he is able to purchase on the online platform may also be purchased through ‘traditional’ distribution channels.

34. Furthermore, no online platform exclusively distributes goods or services which address people’s fundamental interests or primary needs.

35. Therefore, given that, as I mentioned in points 26 and 27 above, the manner in which the trader’s obligations are fulfilled must be consistent with the characteristics of the technical means employed, where a transaction is concluded over the internet, the manner in which the trader’s obligations are fulfilled must take into account the characteristics of the average consumer who uses e-commerce.

36. That initial conclusion is validated by the general case-law on consumer rights and by the more specific case-law on the obligations to provide information laid down in the Directive on electric commerce.

37. In so far as the former is concerned, I would observe that, in its interpretation of the Directive on Unfair Commercial Practices, the Court has referred to the average consumer, that is to say, ‘a reasonably well-informed and reasonably observant and circumspect consumer’.⁽⁸⁾

38. As regards the latter, I would point out that the Court has already given a ruling on the obligations incumbent on traders to provide information that are laid down in the Directive on electric commerce.⁽⁹⁾ In particular, in its judgment of 16 October 2008,⁽¹⁰⁾ it answered a number of questions for a preliminary ruling that present certain similarities with those referred in the present case.⁽¹¹⁾

39. In essence, the Court was being asked whether it was necessary for traders to provide consumers with a telephone number for communication with them, or whether a different means of communication that facilitated rapid and effective communication was sufficient.

40. The Court held in this regard that ‘Article 5(1)(c) of the directive must be interpreted as meaning that a service provider is required to supply to recipients of the service, before the conclusion of a contract with them, in addition to its electronic mail address, other information which allows the service provider to be contacted rapidly and communicated with in a direct and effective manner. That information does not necessarily have to be a telephone number’.⁽¹²⁾

41. The Court went on to clarify that ‘that information may be in the form of an electronic enquiry template through which the recipients of the service can contact the service provider via the internet, to whom the service provider replies by electronic mail except in situations where a recipient of the service, who, after contacting the service provider electronically, [finding] himself without access to the electronic network, requests the latter to provide access to another, non-electronic means of communication’.⁽¹³⁾

42. The wording of the legislative provision which the Court was interpreting contained no express reference to any specific contact methods other than an electronic mail address, unlike the legislative provision at issue in the present case (telephone and fax).

43. However, it must be observed that the reference here to specific contact methods (telephone and fax) is followed by the expression ‘where available’, which I shall interpret in the following points.

44. At this juncture, I must emphasise that both the legislative provision which the Court was then interpreting and Article 6(1)(c) of Directive 2011/83, at issue in this case, relate to the requirement that the consumer should be able to contact the trader quickly and efficiently.

45. It is thus clear from the case-law of the Court that use of the telephone is not always necessary in order for consumers to be able to contact traders operating on the internet quickly and efficiently.

3. The obligations incumbent on traders to provide information in connection with distance contracts and means of communication with the consumer

46. Article 6 of Directive 2011/83, which is headed ‘Information requirements for distance and off-premises contracts’, provides, in paragraph 1 thereof, that the trader must provide the consumer with certain information, including, under point (c), ‘the geographical address at which the trader is established and the trader’s telephone number, fax number and email address, where available’.

47. Article 6(1)(c) gives the reason for which that information must be made available, which is ‘to enable the consumer to contact the trader quickly and communicate with him efficiently’. More generally, Article 6(1) provides, with reference to all the information, that it is to be provided ‘in a clear and comprehensible manner’.

48. Thus, the essential conditions for proper fulfilment of the trader’s obligation to provide information about contact methods are two-fold.

49. In the first place, the information about contact methods must be provided ‘in a clear and comprehensible manner’.⁽¹⁴⁾

50. In the second place, the means of communication must enable the consumer ‘to contact the trader quickly and communicate with him efficiently’.

51. These are two separate conditions and they serve different purposes.

52. The first flows from the more general requirement that contractual terms and conditions must be transparent, which clearly also applies to contact methods, and which requires the trader to ensure that the consumer is able to understand unequivocally what contact methods are available to him in the event that he should need to communicate with him.

53. The second condition relates to the contact methods and requires the trader to ensure that the consumer is able to communicate with him quickly and efficiently, whenever he needs to do so.

54. What matters is not the means of communication considered in the abstract so much as the actual ability, having regard to the specific characteristics of the context in which the transaction is carried out, to ensure that the consumer is able to contact the trader quickly and communicate with him efficiently, and the fact that the information is provided in a clear and comprehensible manner.

55. For the purposes of the attainment of those objectives, account must be taken, in line with the considerations I have set out in points 24 to 45 of this Opinion, of the characteristics of the technical means employed in the negotiation and conclusion of the transaction and of the characteristics of the typical consumer who uses such means.

4. Interpretation of Article 6(1)(c) of Directive 2011/83

56. The attainment of the objectives for the purpose of which the trader is placed under obligations relating to the provision of information does not seem to call for the use of any particular means of communication, such as the availability of a telephone number to call. Rather, as we have seen, what is important is that the means actually employed enables the consumer to contact the trader quickly and communicate efficiently with him, and that the trader provides the information in a clear and comprehensible manner.

57. That conclusion is not contradicted by the wording of Article 6(1)(c).

58. On a more general note, I would observe that Article 6 refers to all distance and off-premises contracts, not only to contracts between traders that operate an online platform and consumers.

59. It is for that the reason that the legislature set out, in point (c), a varied and disparate list of means of communication the suitability of which for attaining the stated purposes of the article will depend on the specific context in which the transaction is carried out.

60. In the case of contracts concluded over the telephone, the chosen means of communication for subsequent communications will naturally be the telephone, but for contracts concluded online other means may be better suited to contacting the trader quickly and communicating with him efficiently.

61. More specifically, the expression ‘where available’, used in Article 6(1)(c), lends literal support to the systematic and teleological interpretation I have outlined, which rules out any obligation to include use of the telephone among the contact methods.

62. It is appropriate at this juncture to focus on the meaning that is to be ascribed to the expression ‘where available’, which is given in the German-language version as ‘gegebenenfalls’, in the French as ‘lorsqu’ils sont disponibles’ and in the Italian as ‘ove disponibili’.

63. As is well known, it is settled case-law that, in interpreting a provision of European Union law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part.⁽¹⁵⁾

64. Next, where a provision of EU law makes no reference to the law of the Member States with regard to a particular concept, that concept must be given an autonomous and uniform interpretation throughout the European Union, which will be arrived at by taking into account not only the wording of the provision in question, but also its context and the objective pursued by the rules of which it forms part.⁽¹⁶⁾

65. The German word ‘gegebenenfalls’, which is given the dictionary definition ‘wenn ein Fall eintritt’ (meaning ‘if that should be the case’) is obviously conditional and refers to a mere possibility. In the Italian-language version, it is given as ‘ove disponibili’, which equates, in Italian, to ‘eventualmente’ (meaning ‘if applicable’) or ‘all’occorrenza’ (meaning ‘where relevant’).

66. The same may be said of the expressions used in the other language versions of the directive: ‘lorsqu’ils sont disponibles’ in the French, and ‘where available’ in the English.

67. On a literal interpretation, Article 6(1)(c) of Directive 2011/83 does not impose on traders any absolute, unconditional obligation to specify all of the contact methods listed in that provision.

68. In the second place, in the wording of Article 6(1)(c), the three contact methods (telephone, fax and email) are put on the same level and are followed by the words ‘where available’, which must, therefore, relate to all three of them.⁽¹⁷⁾ That is not the case with the geographical address, which begins the list in an isolated position and thus obliges the trader to specify it in every case.

69. It is appropriate at this juncture to clarify whether the expression ‘where available’ means that, where an undertaking does have a telephone line, it must be made available for communication with consumers.

70. I do not think that that is the correct interpretation.

71. In the first place, at the time when the directive was drafted, it was almost impossible to conceive of an undertaking having no telephone line, as it still is today. If the EU legislature had wished to impose on undertakings that possess a telephone line (practically all of them) a requirement to use the telephone to communicate with consumers, then there would have been little sense it using the expression ‘where available’.

72. If that expression is to make any sense, we must instead consider the possibility of there not only being a telephone line, but of the line being made available by the trader for communication with consumers.

73. Next, as for the interpretation of ‘available’, that word is synonymous with ‘useable’, ‘accessible’, ‘free’, ‘not otherwise used’.

74. Not everything that exists or is present in a given context is in fact available to, or at the disposal of all who might wish to use it.

75. In Directive 2011/83 there are other provisions which confirm the conditional nature of the use of a telephone line for communication between consumer and trader.

76. Article 21, which is headed ‘Communication by telephone’ and prohibits the Member States from allowing traders to charge more than the basic call rate when they are contacted, includes the words ‘where the trader operates a telephone line for the purpose of contacting him by telephone’. That confirms that use of the telephone as a means of communicating with the consumer in the context of distance contracts is merely optional.

77. Article 5(1)(b) is quite clear in including among the information that must be provided for contracts other than distance or off-premises contracts ‘the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number’, without any reference to whether or not a telephone number is ‘available’. That confirms that traders are required to provide their telephone number in the context of certain transactions only.

78. Those observations lead me to believe that the only meaning that can be ascribed to the expression ‘where available’, in so far as it relates to use of the telephone, is: in the event that the trader has organised his business in such a way as to make a telephone line available specifically for communication with the consumer.

79. The literal interpretation of the provision is, moreover, consistent with the systematic and teleological interpretation I have outlined.

80. One further point may be made with reference to the objectives pursued by the directive.

81. As is clear from recital 4, the aim of Directive 2011/83 is continually to increase the level of consumer protection while at the same time ensuring the competitiveness of businesses.

82. A high level of protection of consumers who carry out transactions on the internet is, as I have already observed, not guaranteed by the abstract possibility of using the telephone to contact traders that operate online platforms, but by the actual presence of appropriate channels that enable consumers to contact the trader quickly and efficiently.

83. The mere availability of a telephone number to call could, by contrast, prove to offer no protection if, for example, waiting times were too long.

84. On the other hand, consumers who, having made purchases using an electronic platform, have acquired sufficient knowledge to navigate the Web, will be capable of using far more efficient mechanisms for communicating with traders.

85. Furthermore, in view of the directive’s objectives, the provisions of EU law on this point must be interpreted in such a way as to ensure the highest possible level of consumer protection without impinging on the organisational freedom of businesses, except to the extent strictly necessary for achieving that level of protection.

86. In that context, effective consumer protection is achieved not by requiring a particular contact method (such as the telephone), but by ensuring that consumers are able to make use of the most effective communication channels for the environment in which they carry out transactions.⁽¹⁸⁾

87. Any different solution, such as would require the establishment of a particular means of communication such as the telephone, unnecessary for ensuring effective consumer protection but applied generally — and so not limited to ‘Web giants’ like Amazon — could be a measure disproportionate to the objectives of consumer protection and liable to impose undue burdens on the undertakings concerned, and be particularly harmful for small undertakings that are attempting to broaden their market by using the internet.

88. That could lead to quite unintended consequences: the intention of protecting the consumer by making telephone contact possible could result in harming the consumer, by restricting his freedom to choose between a number of operators on the market or causing him to pay higher prices, because of the increase in the costs borne by certain undertakings.

89. The conclusion which I have arrived at does not appear to be affected by the fact that one recital of the directive establishes that account must be taken of ‘the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity’.⁽¹⁹⁾

90. Once again, it is necessary to remember the broad scope of the directive, which covers all distance and off-premises contracts. These include the type of contract where it is the trader that contacts the consumer and makes a particular offer. In such cases it is especially important that the information conveyed should be responsive to the specific needs of consumers who are particularly vulnerable for the reasons I have mentioned.

91. Leaving aside the fact that, according to that same recital, the ‘taking into account [of] such specific needs should not lead to different levels of consumer protection’, I fail to see how use of the telephone as a means of communication might result in better protection of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity.

92. In other words, the imposition of an obligation to use a telephone line for communication with consumers would be a measure that had no reasonable functional relationship with the abovementioned objective.

5. The illustrative nature of the list set out in Article 6(1)(c) of Directive 2011/83

93. It may also be inferred from the foregoing considerations that the list set out in Article 6(1)(c) of Directive 2011/83 is not exhaustive, but illustrative.

94. The systematic, teleological and literal interpretation that I have set out leads me to believe that Article 6 requires traders to make available to consumers means of communication that are rapid and efficient and to ensure the clarity and comprehensibility of the information.

95. Provided that those requirements are met, the choice of what means of communication are actually to be made available is left to the trader, who will have regard, inter alia, to the characteristics of the context in which the negotiation with the consumer takes place.

96. On the basis of that premiss, I would interpret Article 6(1)(c) as meaning that there is no obligation on traders to make all three of the means of communication mentioned available to consumers or even necessarily to make a telephone number available merely because the undertaking has one or more telephone lines.

97. If that interpretation is accepted, it would be inconsistent with the objective of comprehensive consumer protection to take the view that the list set out in Article 6(1)(c) is exhaustive, for that would be to deprive consumers of the possibility of using any particularly rapid and effective contact methods that might become available with developments in technology.

98. It is well known that technological developments, which are particularly advanced and rapid in the digital sphere, quickly render certain means of communication obsolete (the substantial disappearance of the fax comes to mind) and constantly introduces new mechanisms for interaction over the internet.

99. In any event, the objective of ensuring a high level of consumer protection and the fact Article 6(1)(c) of Directive 2011/83 contains an illustrative list of several means of communication seem to imply a need for traders to make several means of communication available to consumers and to allow them the freedom to choose.

100. I would merely observe in this connection that it is indisputably apparent from the case file that the automatic call-back facility which Amazon has implemented is more efficient than telephone contact via a call centre and is, in any event, a technological development of such a service.

101. This facility allows the consumer to give his own telephone number and then choose whether to be called back immediately or at some future time. It appears from the case file that immediate call back is almost instantaneous.

102. In so far as concerns the online chat service, that may be regarded as merely a real-time development of email or a technological evolution of the fax. A service of this kind is widely used in online transactions and there is no indication in the case file of complaints that it is inefficient.

103. One complaint that may be gleaned from the case file about such means of communication concerns the protection of the consumer’s personal data.

104. As is well known, consumers who decide to establish a contractual relationship with a trader that operates exclusively on the internet will, as a rule, have to complete a registration that will require certain personal data to be given, including no doubt an email address.

105. However, the processing of the personal data which consumers will transmit to traders (such as their telephone number, where an automatic call-back facility is used) is amply protected by other provisions of EU law and so that question falls outside the scope of the present case.

6. The scope of the obligation of transparency under Article 6(1) of Directive 2011/83

106. Traders are under an obligation to provide, before the consumer is bound by a distance contract, information on all the essential elements of the transaction (including contact methods) ‘in a clear and comprehensible manner’.

107. The obligation of transparency has two essential dimensions: (i) clarity, which must apply to the outward manner in which the information is put before the consumer, and thus to the way in which the information is read and understood in the environment within which the transaction is carried out, and (ii) comprehensibility, which on the other hand refers to the specific content of the information, which must inform the consumer of the legal consequences of his choices. Clarity and comprehensibility must be adapted to the means of communication employed.

108. Article 6 of Directive 2011/83 does not establish any other requirements that traders must observe over and above those which I have mentioned.

109. In particular, Article 6 does not specify the time frame within which it must be possible to obtain the information when navigating on the Web. However, it would not be consistent with the directive’s purposes if the navigation were so complex as to make it difficult to access the information. Indeed, information that is difficult to access is in itself not comprehensible, and thus in breach of Article 6(1).

110. Traders may choose what means of communication are to be made available to the consumer, provided that contact is rapid and communication efficient. The consumer must, however, be able to access the information regarding those means of communication in a simple, efficient and relatively rapid manner.

7. The consistency with EU law of national legislation, such as the German legislation, which requires the use of the telephone as a means of communication between traders and consumers

111. In accordance with recitals 2, 5 and 7 and Article 4 of Directive 2011/83⁽²⁰⁾ the system of rules introduced by the directive is intended to be fully harmonising.

112. In particular, Article 4, which is headed ‘Level of harmonisation’, provides that ‘Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this directive’.

113. Therefore, national legislation may not, in the absence of a different provision in the directive, introduce additional provisions, including more stringent provisions, which would impose on traders an obligation to use any particular means of communication with consumers that is not specified in the directive as mandatory.

114. Consequently, having regard to the interpretation which I have given of Article 6(1)(c), which rules out any obligation upon traders to include use of the telephone as a means of communication with consumers, no such obligation may be imposed by national legislation.

115. Article 6(8) of the directive, which provides that ‘the information requirements laid down in this directive are in addition to information requirements contained in Directive [2006/123] and Directive 2000/31/EC and do not prevent Member States from imposing additional information requirements in accordance with those directives’, poses no obstacle to that conclusion.

116. That provision does not refer to the means of communication employed by traders.

117. Most importantly, however, Article 8(10) provides that ‘Member States shall not impose any further formal pre-contractual information requirements for the fulfilment of the information obligations laid down in this directive’.