A notable judgment of the Court of Justice of the EU in the case of Tiketa (C-536/20) was recently published, to which we devote this legal circular. Within this judgment, preliminary questions posed by the Supreme Court of Lithuania concerning the interpretation of certain provisions of the Consumer Rights Directive (hereinafter the “Directive”) were addressed. From the perspective of internet traders, the conclusions reached by the Court in connection with traders’ information obligations towards consumers are particularly interesting.

Firstly, the Court confirmed in the operative part of the judgment that the pre-contractual information which a trader is required to provide to a consumer before conclusion of a contract (via the internet) pursuant to Article 6(1) of the Directive may also be included in the trader’s terms and conditions placed on the website. As a reminder, these are information obligations of the trader which are reflected in Czech law primarily in the provisions of Section 1811(2), Section 1820(1) and Section 1826(1) of the Civil Code (this concerns an extensive list of various information that must be communicated to the consumer before conclusion of the contract). In this regard, the CJEU has thus to a considerable extent validated the customary practice in the Czech Republic and the views of APEK on this issue.

The above applies only on the condition that the consumer has been “made aware of this information clearly and comprehensibly”. In this connection, it is also appropriate to mention that in reaching this conclusion the Court proceeded from the fact that the terms and conditions had actually been approved by the consumer by ticking a so-called check-box.

It was also stated that this method of fulfilling information obligations does not alter the fact that the pre-contractual information becomes part of the contract with the consumer within the meaning of Article 6(5) of the Directive and “cannot be altered without the express consent of the contracting parties”. We note that this requirement arising from the Directive has been transposed not entirely accurately in Section 1822(1) of the Civil Code. However, in connection with the planned amendment of the Civil Code, a remedy for this situation is expected.

Last but not least, the Court stated that fulfilment of information obligations by the trader in this manner in no way affects the consumer’s right to be provided with the pre-contractual information subsequently on a durable medium, “within a reasonable period after the conclusion of the distance contract and at the latest at the time of delivery of the goods or before performance of the service begins” (Article 8(1) and Article 8(7) of the Directive). These provisions of the Directive are also not correctly transposed in the Czech Republic at present. Section 1822(2) of the Civil Code merely provides that “the trader shall issue to the consumer at least one copy of the contract immediately after its conclusion”, which in our case of contracts concluded via the internet does not make much sense.

It is therefore possible to summarise in conclusion that in the opinion of the CJEU, the extensive pre-contractual information obligations of a trader towards a consumer may be fulfilled by means of terms and conditions placed on a website, provided that this information is clear and comprehensible and that such terms and conditions are approved by the consumer by means of a check-box. This does not affect the trader’s obligation to provide the information in question to the consumer on a durable medium within a reasonable period after conclusion of the contract (but at the latest at the time of delivery of the goods) (for example, to send it by electronic mail or to enclose it in printed form with the goods, etc.).

Josef Aujezdský

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. 02/2022 intended for members of this association.

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