The request for a preliminary ruling under the article 267 TFEU from Bundesgerichtshof (Federal Court of Justice, Germany) in the proceedings pending before that court between “absoluts-bikes and more-GmbH & Co. KG” versus “the-trading-company GmbH”, concerns the interpretation of Article 6(1)(m)[1] of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights. More specific this decision analysed in its reasoning the obligation of the trader who has the same role as the company “absoluts” under the above provisions to inform the consumer of the existence of a commercial guarantee provided by the manufacturer and of the conditions relating thereto.
According to the background of the court decision, “Absoluts was selling, through the online shopping platform Amazon, a pocket knife from the Swiss manufacturer Victorinox. The page of the Amazon website on which this offer appeared did not contain information about any warranty provided by absoluts or a third party, but a link entitled ‘How to use’, which was included in the column ‘Other technical information‘.”
Article 6(1) of Directive 2011/83 requires that the trader provides the consumer in a clear and comprehensible manner, with various information in order to ensure that the consumer is sufficiently informed pre-contractually to a distance or and off-premises or equivalent contract/offer; this provides the consumer the ability to decide whether he/she wishes to be bound by contract with the trader but also to be able to exercise his/her rights.
In order to strike a balance between a high level of consumer protection and the competitiveness of businesses, without prejudice to the entrepreneur’s freedom of enterprise[2], it was held that the trader is obliged to provide the consumer with pre-contractual information on the manufacturer’s commercial guarantee only if the consumer has a legitimate interest in being informed in order to be able to take the decision. Such a legitimate interest exists where the trader makes the commercial guarantee provided by the manufacturer a central or decisive element of his offer.
Controversially, i.e. if the trader’s offer mentions the manufacturer’s commercial guarantee in a minor, insignificant or negligible way, the trader is not obliged to provide the consumer with pre-contractual information on the guarantee in question under the above provisions of the Directive.
The criteria for determining that a commercial guarantee constitutes a central or critical element are:
(a) the content and general structure of the offer in relation to the product,
(b) the importance, from the point of view of a sales argument or advertising argument, of the mention of the manufacturer’s commercial guarantee,
(c) the place occupied by that reference in the tender,
(d) the risk of confusion or deception which such a reference is likely to cause to the average consumer who is reasonably well informed and reasonably observant and circumspect as to the various rights conferred by the guarantee and which he may exercise or as to the guarantor’s true identity,
(e) the existence or otherwise of explanations in the offer concerning the other guarantees provided for the product,
and any other data capable of demonstrating an objective need to protect the consumer.
This decision clarifies the scope of information obligations for traders selling third party products via digital platforms.
[1] Directive 2011/83/ΕE: – article 6 par. 1(m): Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner: where applicable, the existence and the conditions of after sale customer assistance, after-sales services and commercial guarantees;
[2] As enshrined in Article 16 of the Charter of Fundamental Rights – decision of 10 July 2019, Amazon EU, C 649/17, EU:C:2019:576, par. 44.
Link to the decision:
https://curia.europa.eu/juris/document/document.jsf?text=&docid=258876&pageIndex=0&doclang=EL&mode=lst&dir=&occ=first&part=1&cid=5141895
