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The Court of Justice of the European Union (“CJEU”) has established, in its judgment of July 10, 2019, that e-commerce platforms like Amazon are not obligated in any case to provide a phone number to consumers prior to entering into a contract.

The CJEU has issued this judgment in response to a reference for a preliminary ruling from Germany’s Supreme Civil and Criminal Court, in the context of a dispute between Amazon EU and the German Federation of Consumer Associations (the “Federation”). Specifically, the referred issue concerns whether a company like Amazon, which only sells products in Germany via its website, is required in accordance with the provisions of Directive 2011/83  on consumer rights (the “Directive”), to install a telephone or fax line, or create a new email address, to allow consumers to contact the platform. The referring court had also asked whether a commercial entity with such characteristics could use other means of communication, e.g., instant messaging.

All of this must be considered in a context where German law requires any commercial entity to provide its phone number before entering into a contract with a consumer remotely, or at any location outside its own premises.

In its judgment, the CJEU has ruled that the Directive does not imply an obligation for such entities to install a telephone or fax line or create a new email address to allow consumers to contact them but, instead, it only requires a phone number, fax number or email address to be provided by when they already have those means available for communicating with consumers. According to the CJEU, the Directive does, however, impose the obligation to provide consumers with a means of communication that will allow fast, effective communication, and this requirement can be fulfilled by providing a means of communication other than those listed in the Directive.

Although the purpose of the Directive is to ensure a high level of consumer protection by safeguarding their information and security, imposing the unconditional obligation on commercial entities to provide consumers, under all circumstances, with a telephone number, or to install a telephone or fax line, was considered  disproportionate.

In the opinion of the CJEU, it is necessary to strike a fair balance between a high level of consumer protection and the competitiveness of businesses and their right to free enterprise. As a result of this view, ensuring that consumers can quickly and directly contact a commercial entity is particularly important for protection of consumer rights.

Furthermore, the CJEU believes that the Directive does not prevent commercial entities from using other means of communication such as electronic contact forms, instant messaging systems or callback requests, as long as those means allow for direct and effective communication between the consumer and the commercial entity. This is based on the requirement that consumers must be able to access information related to such means of communication in a clear and comprehensible manner.

Finally, according to the CJEU, it is the national courts that must  interpret whether the means of communication that commercial entities make available to consumers in each case can ensure rapid, effective contact. On this subject, the CJEU states that the fact that a telephone number is only made available after a sequence of clicks on a website is not, in itself, sufficient to establish that the means of communication used is not clear and comprehensible.

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Alejandro Negro


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