Opinion of the Advocate General — ECLI:EU:C:2012:126
Date: 2012-03-06
Language of the case: German
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary 46. To summarise the considerations set out above, the methods for presenting the information to the customer in the circumstances giving rise to the main proceedings do not satisfy the requirements of Article 5 of the Directive. In particular, the fact that the customer is given the information on a web page only, which he can access by clicking on a link shown when the contract is concluded, means both that the customer has not ‘received’ the information and that the latter has not been given in a ‘durable medium’. V – Conclusion 47. In the light of the foregoing considerations, I suggest that the Court answer the question referred to it by the Oberlandesgericht as follows: The requirements of 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 are not satisfied where the information required by Article 5(1) is made available on a web page which the customer can access by clicking on a hyperlink shown when the contract is concluded. 1 – Original language: Italian. 2 – 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 (OJ 1997 L 144, p. 19). 3 – According to Article 14, in fact, the Member States may adopt more stringent provisions to ensure a higher level of consumer protection. 4 – The Italian text of the Directive uses the same verb ‘ricevere’ (to receive) for the information required under both Article 4 and Article 5. However, in most of the other language versions, under Article 4, the consumer has merely to be ‘provided with’ the information, and only in regard to the information under Article 5 must the consumer ‘receive’ that information. See, for example, the French, English, German, Spanish and Dutch versions of the Directive. See also point 24 of this Opinion. 5 – In point of fact, the concept in Article 5(1) of Directive 97/7/EC does not have the same name in all the language versions as the concept defined by other directives. For example, the Italian text of the provisions defining the concept does not employ the expression ‘supporto durato’ but instead uses ‘supporto durevole’. It seems clear, however, that the legislature intended to refer to the same concept, as is also apparent from a comparison of those language versions of the directives that include a definition, in most of which the terminology used is identical to that used in Directive 97/7/EC. See, for example, the English (‘durable medium’), French (‘support durable’), German (‘dauerhafter Datenträger) and Spanish ‘(Soporte duradero’) versions of the abovementioned legislative texts. 6 – Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC (OJ 2002 L 271, p. 16). 7 – Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation (OJ 2003 L 9, p. 3.) 8 – 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 (OJ 2011 L 304, p. 64). Directive 97/7/EC will be repealed as of 13 June 2014 (see Article 31 of Directive 2011/83/EU). 9 – More particularly, for example, it is doubtful whether the ‘waiving’ of the right of withdrawal which Content Services requires of its customers is lawful. According to the information provided by the national court, the position of Content Services on this point is not clearly defined. The company sometimes refers to a waiver of the right of withdrawal on the part of the consumer, and sometimes maintains that, as far as its services are concerned, the right of withdrawal does not exist in accordance with Article 6(3), first indent, of the Directive. 10 – See, for example, the French (‘le consommateur doit bénéficier des informations suivantes’), English (‘the consumer shall be provided with the following information’), German (‘der Verbraucher muß … über folgende Informationen verfügen’), Spanish (‘el consumidor deberá disponer de la información siguiente’), and Dutch versions (‘moet de consument … beschikken over de volgende informatie’). 11 – As the Commission has pointed out, the ‘giving’ of information to which Article 5(1) refers is entirely equivalent to the ‘receipt’ of information mentioned earlier in that paragraph. The only difference is the perspective, which is that of the consumer when the legislature refers to ‘receipt’ and of the vendor/supplier when the reference is to ‘giving’. 12 – See, for example, Case C‑489/07 Messner [2009] ECR I‑7315, paragraph 19, and Case C‑511/08 Handelsgesellschaft Heinrich Heine [2010] ECR I‑3047, paragraph 54. 13 – See footnote 5 above. 14 – EFTA Court, judgment of 27 January 2010 in Case E‑4/09 Inconsult Anstalt. To be precise, the judgment concerned Directive 2002/92/EC. However, as I pointed out above, there is no reason to consider that the concept of ‘durable medium’ under that directive differs from that contained in Directive 97/7/EC. 15 – It might be pointed out that, depending on the type of email service used by the consumer and the way in which he accesses it, even a message sent via email might not be placed entirely within the control of the customer who receives the information. An example would be a service which offers the possibility of electronic mail messages via a web interface only, without the option of using protocols (IMAP, POP etc) which allow the user to transfer one or more copies of messages to his own electronic devices (such as a computer or, smartphone). That objection is, however, unfounded. By its very nature, an electronic mail service is designed to channel personal messages to users: were a situation to arise in which a user lost control of his messages, this would be caused, if not by carelessness on the user’s part, then by a lack of care on the part of the email service provider, but not on the part of the vendor who provided his customer with the information via email. The vendor cannot be required to refrain from using a means of communication simply because the customer might not use it properly, or not use a reliable service provider.