Opinion of the Advocate General — ECLI:EU:C:2008:283
Date: 2008-05-15
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, data transmission is part and parcel of electronic commerce, to which it is inextricably linked, since it is perfectly obvious that the communications between a company which operates on the net and a potential client are made exclusively via that medium. 3. The requirement of electronic mail alone is more consistent with the objectives of the directive. 39. Requiring only electronic mail appears more consistent with both the general objectives of the directive and the aim pursued by Article 5 thereof. 40. According to recitals 3, 4, 5, 6 and 8, the directive seeks to develop the information society and capitalise on the opportunities in the internal market with electronic commerce. 41. Accordingly I agree with the Swedish and Polish Governments that the need for a telephone line might pose a serious obstacle for this type of business and, in any event, for the proper functioning of the internal market in that sphere. 42. Moreover, simply mentioning a telephone number on a web page does not guarantee the direct and effective communication referred to in the directive, which would only be achieved with a ‘call centre’. Such telephone help-lines have a high economic cost for the company, (13) which has a negative impact on prices and affects the viability of internet commerce with respect to small companies which are often the most innovative and dynamic in the economy. 43. It is therefore inconceivable to imagine that the directive requires businesses operating on the internet to consistently offer consumers the option of telephone assistance, as that is not required either by the Directive on the protection of consumers in respect of distance contracts or the Directive concerning the distance marketing of consumer financial services. (14) What is more, those two directives, by regulating the information that all users have available prior to concluding the contract, allow that information to be provided in any way appropriate to the means of distance communication used (Article 4(2) of Directive 97/7 and Article 3(2) of Directive 2002/65). 44. In the same way, the principle of proportionality comes into play as recital 10 in the preamble to the directive limits the measures provided for to the minimum needed to achieve the objective of the proper functioning of the internal market. A literal interpretation of the provision at issue, as well as being detrimental to the development of electronic commerce, would go beyond what is strictly necessary in order to ensure both the proper functioning of the internal market and ‘direct and effective’ communication with the service provider. 4. In this case there is no infringement of consumers’ rights 45. A general notion of consumer protection cannot be relied on since this is a case in which a consumer approaches an undertaking in order to obtain further information about the services that it sells on the internet. There is not yet any contractual relationship between the parties nor, therefore, any possibility of seriously harming consumer interests. The undertaking chooses to trade exclusively on the internet and the potential buyer opts for a service provider with those characteristics. 46. The medium used by the service provider is an additional aspect of its offer – if the client does not want to formulate his questions in writing or if he prefers a more personal relationship he can always go to another company which does respond to him by telephone (and also face-to-face). The client thus renounces one proposition in favour of another more suited to his requirements, in the same way as he compares prices or insurance terms or someone who goes in person to his bank and who does not entrust his savings to a financial entity without branches. C – Summary 47. In the light of all of the foregoing, qualification of the literal interpretation of Article 5(1)(c) of the Directive on electronic commerce appears unavoidable in order to facilitate the attainment of its objectives, taking account of the context in which it applies, and giving priority to the aim of ensuring that the consumer has an initial contact with the provider of services which is rapid, direct and effective. 48. The answer to the first question referred for a preliminary ruling by the Bundesgerichtshof must be that Article 5(1)(c) does not require either expressly or impliedly the inclusion of a telephone number on the web page of the service provider, even if it does expressly refer to providing a contact electronic mail address. 49. With respect to the second question, I agree with the Commission that rapid, effective and direct electronic communication is sufficient to provide the limited access required by the directive, without there being any need to provide other additional means of contact with the service provider. However, the provision under consideration should be interpreted as providing that the internet page must contain at least the electronic mail address. In accordance with that interpretation, only where email does not guarantee that kind of contact would it be necessary to add another means of communication, making an assessment as to whether the telephone would be able to achieve the aim of Article 5(1)(c). 50. If the directive is understood in that way there is no need to examine the third question referred by the Bundesgerichtshof. However, if the Court of Justice adopts a literal interpretation of the directive which requires the addition of another means of communication, an on-line enquiry template would be appropriate, in spite of its proximity to the simple mention of the electronic mail address. VI – Conclusion 51. In the light of the foregoing considerations, I propose that the Court of Justice reply as follows to the questions referred for a preliminary ruling by the Bundesgrichtshof: (1) In accordance with Article 5(1)(c) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, a service provider is not required to provide a telephone number in order to communicate with consumers before the conclusion of a contract. (2) Service providers are also not required, in accordance with that provision, to provide a second means of contacting users, different from the electronic mail address, so long as the latter is adequate and sufficient to enable rapid contact and establish direct and effective communication. 1 – Original language: Spanish. 2 – Directive of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1). 3 – Directive 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). 4 – The Diccionario de la Lengua Española (Dictionary of the Spanish Language), Spanish Royal Academy, does not recognise that meaning (it refers only to ‘señas personales’ which it defines as ‘rasgos característicos de una persona’ (characteristic features of a person) which distinguishes them from the rest; and the expression ‘dar señas de algo’ as ‘manifestar sus circunstancias individuales’ (show one’s individual particularities); ‘desribirlo de forma que destaque de otra cosa’ (describe someone in such a way so to distinguish them from someone else). It is however recognised by the Diccionario de Uso del Español, María Moliner, which states, as a third meaning of the word (in plural), the ‘indicación precisa del sitio donde vive una persona’ (exact description of the place where a person lives). 5 – Curiously, the Dictionnaire de l’Académiefrançaise (Dictionary of the French Academy) includes the phrase, with a colloquial and figurative meaning ‘donnez-moi vos coordonnées’ as a synonym for the address and telephone number but advises against its use. 6 – Case 29/69 Stauder v Ulm [1969] ECR 419; Case 30/77 Bouchereau [1977] ECR 1999; Case 9/79 Koschniske [1979] ECR 2717; Case 55/87 Alexander Moksel Import und Export [1988] ECR 3845; Case C-296/95 EMU Tabac and Others [1998] ECR I-1605; Case C-482/98 Italy v Commission [2000] ECR I-10861; Case C-1/02 Borgmann [2004] ECR I-3219; Case C‑63/07 Profisa [2007] ECR I-3239; and Case C-457/05 Schutzverband der Spirituosen-Industrie [2007] ECR I-8075. 7 – Whether it is simultaneous (as in so-called ‘chats’) or delayed (as in electronic mail), to use a term widely used in the domain of information technology. 8 – Case C-300/05 ZVK [2006] ECR I-11169; Case C-53/05 Commission v Portugal [2006] ECR I‑6215; Case C-301/98 KVS International [2000] ECR I-3583; Case C‑156/98 Germany v Commission [2000] ECR I-6857; and Case 292/82 Merck [1983] ECR 3781. 9 – Marcel Proust, À la recherche du temps perdu, À l’ombre des jeunes filles en fleur, Ed. Gallimard, La Pléiade, Paris, 1987, Volume I, p. 596, in which Mme Bontemps and Mme Swann discuss, with respect to the fact that Mme Verdurin is having electricity in her new house, the story of the sister-in-law of an acquaintance who has had a telephone installed at her home with which she can amongst other things order what she wants without leaving her room. Mme Bontemps admits being intrigued by the telephone and having an irresistible temptation to see how it works, but prefers to do so in another person’s house because, in her opinion, once her curiosity has been satiated it would cause a perfect racket. 10 – Castell, M., La Glaxaia Internet, Plaza y Janés Editores S.A., Barcelona, 2001. 11 – According to Eurostat, the percentage of families with broadband access at home has increased in the European Union from 14% in 2004 to 42% in 2007; in Germany that percentage increased from 9% in 2003 to 50% in 2007. It is also revealing (again according to Eurostat) that the number of transactions by European undertakings arising from electronic commerce has risen from 2.1% in 2004 to 4.2% in 2007 (total figures for the European Union). 12 – The study Realities of the European on line marketplace by the European Consumer Centre’s Network, talks about a second wave of e-commerce stemming from the increase in consumer confidence in electronic media; however, it acknowledges that much progress has to be made before the predictions of market success materialise http://ec.europa.eu/consumers/redress/ecc_network/european_online_marketplace2003.pdf). According to Luc Grynbaum ‘one can easily imagine that tomorrow the invisible hand of the market, so desired by some economists, will no longer be only a financial but also a commercial reality in the form of a vast intangible and permanent market created by the web’ (Grynbaum, L. ‘La Directive “commerce électronique” ou l’inquietant retour de l’individualisme juridique’, in La Semaine Juridique, Edition Générale, No 12, 21 March 2001, I 307). 13 – The high cost of these services can be demonstrated by comparing them to other written answering services, since it has been proved that telephone calls are usually concentrated in certain time bands (Empirical Analysis of a Call Centre, Avishai Mandelbaum, Anat Sakov and Sergey Zeltyn, Israel Institute of Technology, 2001). 14 – 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).