In a recent judgment, the Court of Justice of the EU addressed the issue of the trader’s information obligation before concluding a contract, in those cases where a distance contract is concluded by means of such a medium which provides only limited space or time for providing pre-contractual information to the consumer (for instance, during a telephone call or by means of an order coupon, etc.).
Specifically, this judgment deals with the interpretation of the provision of Article 8(4) of the Consumer Rights Directive. This provision of the Directive reflects to a certain extent the fact that when using certain means of distance communication, it is not realistic to communicate to the consumer all the pre-contractual information required by the Directive. However, this provision also establishes a minimum range of information which must always be communicated to the consumer (regardless of the means of communication used). Among these information obligations of the trader is the obligation to communicate the conditions, time limit and procedures for exercising the right of withdrawal from the contract, as well as the obligation to provide a model withdrawal form for such withdrawal from the contract. However, the obligation to provide a model withdrawal form may not always make sense within the framework of limited means of communication. For these reasons, inter alia, this issue became the subject of interpretation by the Court of Justice of the EU.
What specifically was this case about? The German company Walbusch Walter Busch distributed an advertising leaflet in the format of 19 x 23.7 cm comprising six pages, which was inserted in various newspapers and magazines. The leaflet also contained an order coupon in the form of a detachable correspondence card. On both the front and back of this correspondence card, attention was drawn to the right of withdrawal from the contract, with the telephone number, fax number, postal address and internet address of the company Walbusch Walter Busch also being stated. On the said company’s website, in the “Terms and Conditions” section, it was then possible to find instructions for withdrawal from the contract by the consumer and a model withdrawal form.
However, this advertising model of the company Walbusch Walter Busch was challenged by a German consumer rights organisation on the grounds that, although the back of the correspondence card referred to the consumer’s right to withdraw from the contract without giving a reason, the leaflet lacked any mention of the conditions, time limit and procedures for exercising this right and the leaflet did not contain a model withdrawal form either.
The German court, in its request for a preliminary ruling, mentioned that two interpretations of the provision of Article 8(4) of the Directive are possible, under which the exception allowing the trader to provide only a limited range of information could apply. On the basis of the first possible interpretation, the exception would apply where the means (of distance communication) objectively provides only limited space or limited time by its nature. For example, in catalogues and brochures, all information about the right of withdrawal from the contract would always have to be stated, whereas in the case of a newspaper advertisement or a leaflet in correspondence card format on the basis of which it would be possible to place a particular order, a mere mention of the existence of the right of withdrawal from the contract would suffice. On the basis of the second possible interpretation, the decisive factor would be the specific form (of the means of distance communication) chosen by the trader, in particular the design, layout, graphic appearance or size of the advertising medium. The exception could thus apply where there was a risk that, after stating all the information about the right of withdrawal from the contract and the procedures for exercising it, a significant part of the advertising medium would be taken up, for example more than 10% of its area.
The Court of Justice of the EU favoured the first interpretation outlined, stating that the assessment of whether the means of communication in a particular case actually provides only limited space or time for providing information “must be carried out having regard to all the technical characteristics of the trader’s commercial communication”. In this respect, it is for the national court to verify whether, having regard to the space and time taken up by the communication in question and to the minimum size of typographical characters which would be suitable for the average consumer at whom that communication is directed, all the pre-contractual information could objectively be stated within that communication or not.
If such a conclusion is affirmative, that is to say, it is a means of communication which is limiting in any of the respects mentioned, the trader is, of course, obliged to provide the consumer in advance with information on the conditions, time limit and procedures for exercising the right of withdrawal from the contract. However, the trader need not provide the consumer with the model withdrawal form in this manner, and it is sufficient if the trader refers, in clear and comprehensible language, to another source where the model form is available.
The court reached this conclusion on the basis of the consideration that the fact whether the consumer has at his disposal a model form before concluding the contract “cannot have any influence on his decision to conclude a distance contract, and it must further be noted that the obligation to provide the consumer with this model form in all circumstances could represent a disproportionate burden for the trader and, in some cases, such as contracts concluded by telephone, even an unacceptable burden.”
Josef Aujezdský, solicitor
This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Electronic Commerce Association (APEK) as legal newsletter No. 2/2019 intended for members of this association.
This text was translated from Czech to English using an AI translator.