EUGH: An effective notice of withdrawal needs a telephone number?

The ECJ has ruled that in a withdrawal notice, the telephone number of the provider must be present. In doing so, the ECJ had to weigh EU law and German law in

In Germany applies:

“In the case of contracts concluded away from business premises and distance contracts, the entrepreneur is obliged to inform the consumer in accordance with Article 246a of the Introductory Act to the Civil Code. The information provided by the entrepreneur in fulfillment of this obligation shall become the content of the contract, unless the contracting parties have expressly agreed otherwise.”

The BGH had asked the ECJ whether Art. 6 para. 1 lit. (c) of Directive 2011/83 is to be interpreted as meaning that a trader’s telephone number, which must be indicated ‘where appropriate’ under that provision, is to be regarded as available in a situation in which it is indicated on his website and used for the activities of his business, and, second, whether Article 6(6)(c) of Directive 2011/83 is to be interpreted as meaning that it is available in a situation in which it is indicated on his website and used for the activities of his business. 1 lit. c and h and par. Article 4 of the Directive, read in conjunction with Part A of Annex I thereto, must be interpreted as meaning that a trader who, before a consumer is bound by a distance or off-premises contract, provides him with information on the procedures for exercising the right of withdrawal, using the model withdrawal notice in Part A of Annex I to the Directive, must provide a telephone number so that the consumer can inform him of any decision to exercise that right.”

The ECJ answered this question as follows

Art. 1 lit. (c) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as meaning that the telephone number of a trader which, under that provision, must be indicated ‘where appropriate’ in a situation in which it can be found on his website in such a way as to suggest to an average consumer, that is to say, a consumer who is reasonably well informed and reasonably observant and circumspect, that the trader uses that telephone number for his contacts with consumers. that is to say, a reasonably well-informed and reasonably observant and circumspect consumer, that the trader uses that telephone number for his contacts with consumers, is to be regarded as available. In such a case, Art. 6 para. 1 lit. c and h and par. 4 of the directive, read in conjunction with Annex I, Part A, thereto, must be interpreted as meaning that the trader who, before a consumer is bound by a distance contract or an off-premises contract, provides him with the information for exercising the right of withdrawal and, in so doing, makes use of the model withdrawal notice in Annex I, Part A, must include the relevant telephone number therein so that the consumer may inform him by that means of his possible decision to exercise the right of withdrawal.

A telephone number must therefore be included in the notice of withdrawal if the provider suggests to a normally informed, reasonably observant and circumspect consumer at other points on the website that the consumer will use the telephone number to contact the customer, for example, if the telephone number is included on a contact page or similar as a hotline or as an information option.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.