In the first circular of this year, we shall focus more closely on the judgment of the Court of Justice of the EU in the case of Content Services Ltd v. Bundesarbeitskammer (C-49/11), which in our opinion may have important implications for the interpretation of provisions of Czech law. In this decision, the Court of Justice of the EU dealt with legal issues connected with the fulfilment of information obligations by a trader towards a consumer by means of a hypertext link and the nature of the trader’s website as a medium of information.

The conclusions reached by the Court are thus of significance particularly for the area of fulfilment of information obligations, specifically for the manner in which these information obligations are to be fulfilled by the trader. They will therefore be important both for the interpretation of the existing legal regulation of the Civil Code (Act No. 40/1964 Coll., as amended) and for the interpretation of the new regulation. As has already been announced by us previously, the new Civil Code (Act No. 89/2012 Coll.) should incorporate provisions of the new Directive 2011/83/EU of the European Parliament and of the Council on consumer rights (hereinafter “the Directive on consumer rights”).

In the case in question, the issue specifically concerned the interpretation of the provisions of Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council on the protection of consumers in respect of distance contracts. The not entirely accurate translation of this provision contained in the Czech version of the Directive reads: “The consumer must receive in good time during the performance of the contract, but in any event not later than the time of delivery of goods or before the commencement of performance of services, confirmation of the information …, in writing or on another durable medium available and accessible to him …” Given that the requirement of written form is not met in the overwhelming majority of cases in the area of electronic commerce, the interpretation of the term “another durable medium available and accessible to the consumer” gains importance. The Directive on consumer rights uses for these cases (Article 2(10)) the term “durable medium”, which means “any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored”. What may in practice be “another durable medium available and accessible to the consumer” or a “durable medium” was precisely the subject of assessment by the Court of Justice of the EU in this case.

Content Services Ltd offered paid on-line services, whilst fulfilling its information obligations by ensuring that this information was not displayed directly to users within the registration process, but could only be viewed after clicking on a hypertext link. Nor did the electronic mail messages sent by Content Services Ltd during or after the contracting process contain the information the provision of which is required by Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council on the protection of consumers in respect of distance contracts. As has already been outlined above, the subject of the dispute in the proceedings before the Court of Justice of the EU was the interpretation of whether the mere provision of a hypertext link can constitute the provision of information to the consumer and whether the trader’s website can be considered “another durable medium available and accessible to the consumer” by means of which the trader may fulfil its information obligations.

The Court reached a negative conclusion on both points, declaring that Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts must be interpreted as meaning that commercial conduct which consists in making information accessible only by means of a hypertext link to the website of the undertaking concerned does not satisfy the requirements laid down, since such information is neither “provided” by that undertaking nor “received” by the consumer, and that such a website, such as those at issue in the main proceedings, cannot be regarded as a “durable medium”.

It therefore follows from the above that in the practice of Czech traders it will be necessary to re-evaluate the manner of fulfilment of information obligations towards consumers.

Josef Aujezdský

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

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the civic association Association for Electronic Commerce (APEK) as legal circular No. 1/2013 intended for members of this association.

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