EU Court Of Justice Clarifies Duty To Provide Information On Consumer's Right Of Withdrawal In Distance Contracts

On 23 January 2019, the Court of Justice of the European Union ("ECJ") handed down its judgment in Case C-430/17, Walbusch Walter Busch, in which it clarifies the scope of a trader's duty of information in distance contracts with consumers pursuant to Directive 2011/83/EU of 25 October 2011 on consumer rights (the "Consumer Rights Directive").

The facts of the case date back to 2014 when Walbusch Walter Busch ("Walbusch"), a clothing retailer, distributed an advertising leaflet with a detachable mail order coupon as a supplement to various newspapers and magazines. The coupon contained specific information about the trader, as well as information about the consumer's right of withdrawal coupled with a reference to a website link giving access to the model withdrawal form.

The Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV, a consumer association, submitted an application to the Landgericht Wuppertal (Wuppertal Regional Court, Germany) for an order stopping the publication of that leaflet as it considered that the information provided for on the leaflet did not satisfy the formal information requirements relating to the consumer's right of withdrawal in distance contracts as set out in Article 6(h) of the Consumer Rights Directive.

Having made its way up through the national court system, the dispute eventually reached the Bundesgerichtshof (Federal Court of Justice, Germany) which stayed the proceedings and referred several questions on the scope of the duty to provide information in distance contracts to the ECJ in order to obtain a preliminary ruling.

Article 6(1) of the Consumer Rights Directive provides that in distance or off-premises contracts, or any corresponding offers, the trader must provide the consumer with specific pre-contractual information relating to that contract or offer in a clear and comprehensible manner. If there is a right of withdrawal, Article 6(1)(h) of the Consumer Rights Directive requires the trader to provide the consumer with the model withdrawal form set out in Annex I(B) to the Directive.

However, if the contract is concluded through a means of distance communication which allows for only limited space or time to display the information, Article 8(4) of the Consumer Rights Directive only requires the trader to provide the consumer in plain and intelligible language with specific pre-contractual information, including the information concerning the right of withdrawal, in a way that is...