In this legal circular, we will address the very first judgment of the Court of Justice of the European Union interpreting the Consumer Rights Directive. The adoption of the Consumer Rights Directive represented a significant change in the field of consumer law, whereby in the Czech Republic this Directive was transposed predominantly by the Civil Code (Act No. 89/2012 Coll., as amended), which entered into force on 1/1/2014, and also by an amendment to the Consumer Protection Act (Act No. 634/1992 Coll., as amended).

The judgment of the Court of Justice of the European Union in the case Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV v comtech GmbH (C-568/15) concerned the interpretation of the provision of Article 21 of the Consumer Rights Directive. This provision stipulates that “Member States shall ensure that, where traders operate telephone lines for the purpose of contacting them by telephone in relation to contracts concluded, consumers, when contacting traders, are not bound to pay more than the basic rate.” The objective of this provision is therefore to protect consumers against additional charges for telephone calls with a trader with whom they have concluded a contract, for example in connection with resolving a customer complaint or in connection with exercising rights arising from liability for defects (complaints).

The Czech legislature duly implemented the aforementioned prohibition contained in the provision of Article 21 of the Consumer Rights Directive into our legal order only on 28.12.2015, by means of an amendment to the Consumer Protection Act. The provision of Section 3a of the Consumer Protection Act has since read as follows: “a seller who, in connection with a concluded contract, uses a public communications service for communication with a consumer, must not use such a service the use of which would mean for the consumer the charging of higher prices than the basic call rate.” The case in question concerned a dispute between an organisation defending consumer rights against the German company comtech GmbH, which is engaged in the sale of electronics. Specifically, it concerned the rate for telephone calls applied by this company in the context of after-sales service for goods. Comtech GmbH used for these purposes a telephone number beginning with the prefix 0180, which is generally used in Germany for customer services with a uniform national rate. However, the price of a call to this so-called “non-geographic” number is higher than the price of a regular call to a so-called “geographic” fixed line number or to a mobile network number. The organisation defending consumer rights considered this to be an unfair commercial practice, whilst according to comtech GmbH, the regulation in question did not prevent the rate for calls to the customer line from being higher than the rate for so-called “regular” calls, provided this was done for the purpose of compensating the trader’s costs of providing the customer service line from which the trader does not make a profit.

The Court of Justice of the European Union ultimately concluded that the concept of “basic rate” referred to in Article 21 of the Consumer Rights Directive must be interpreted in the sense that “the price of a call concerning a concluded contract, made through a customer service telephone line operated by a trader, must not be higher than the price of a call to a regular geographic fixed line or mobile network number. If this limit is observed, the circumstance of whether or not the trader in question makes a profit through this customer service telephone line is irrelevant.” This interpretation should also apply in the Czech context.

In this connection, we note that the interpretation of the provision of Article 21 of the Consumer Rights Directive is to be the subject of a further interpretation by the Court of Justice of the European Union, specifically in the case AS Starman v Tarbijakaitseamet (C-332/17). This preliminary reference was submitted by an Estonian court.

Josef Aujezdský, Advocate

Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advisory

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. 12/2017 intended for members of this association.

This text was translated from Czech to English using an AI translator.