In the April legal circular, we will examine in more detail two judgements of the Court of Justice of the European Union (hereinafter “CJEU”), which may also be of interest from the perspective of a trader doing business on the internet, namely the CJEU judgment in the case of Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main e. V. v comtech GmbH (C-568/15) and the CJEU judgment in the case of Verband Sozialer Wettbewerb eV v DHL Paket GmbH (C-146/16).
It is quite common for a consumer, for various reasons, to contact a trader by telephone via a customer helpline in connection with a concluded contract; typically this will concern a subsequent complaint about a product, withdrawal from a contract or termination of a contract. The judgment in question deals with the issue of the rate charged for a call to a trader for matters relating to concluded contracts. Article 21 of the Consumer Rights Directive provides that “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, consumers are not bound to pay more than the basic rate when contacting the trader. The first subparagraph shall be without prejudice to the right of telecommunication services providers to charge for such calls.” The essence of the judgment in question is to determine what constitutes a basic rate, since this term is not defined in the Directive. The CJEU takes the view that the term basic rate “must be interpreted as meaning that the price of a call relating to a concluded contract, made via a customer service telephone line operated by the trader, must not be higher than the price of a call to a standard geographic landline or mobile network number. If this limit is observed, it is irrelevant whether or not the trader in question makes a profit through this customer service telephone line.”
DHL Paket GmbH is the operator of an internet sales portal on which traders-entrepreneurs can offer their products for sale. DHL Paket GmbH ordered printed advertising in a weekly magazine for various products which could be purchased through the aforementioned internet sales portal. The CJEU assessed whether the advertising in question could be regarded as an “invitation to purchase” and thus addressed the question of whether printed advertising for specific products must contain so-called material information in accordance with Article 7(4)(b) of the Unfair Commercial Practices Directive, i.e. the address and identity of the seller of the product. In the dispute in question, the required information, i.e. the address and identity of the seller of the product, was accessible only on DHL Paket GmbH’s internet sales portal and not within the advertisement itself. The CJEU concluded that “such advertising, such as that at issue in the main proceedings, which falls within the concept of ‘invitation to purchase’ within the meaning of that Directive, may satisfy the information requirement laid down in that provision. It is for the referring court to assess in individual cases whether the space limitations in the advertising text justify the provision of information about the supplier exclusively on the internet sales portal, and, where appropriate, whether the information required by Article 7(4)(b) of that Directive concerning the internet sales portal is communicated in a manner that is easy and rapid.” In conclusion, it may be said that the court assessed the printed advertising as an “invitation to purchase”, whereby the assessment of compliance with the trader’s information requirements in connection with such advertising will be a matter for the national court. The national court should also include in its assessment the circumstances of whether the required information is easily and rapidly accessible on the internet (if such information is not also contained in the advertisement itself), in order for the trader’s information obligation to be considered fulfilled.
Lucie Šedivá
Law Firm Mašek, Kočí, Aujezdský
www.e-Advokacie.cz – on-line legal advisory service
This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 4/2017 intended for members of this association.
This text was translated from Czech to English using an AI translator.