No need for traders to provide a telephone number in their instructions on withdrawal – Federal Court of Justice, decision of 25 February 2025 - VIII ZR 143/24

The claimant, a consumer, purchased a car from the defendant via the online distribution platform. Upon formation of the contract, the defendant provided the claimant with individually drafted instructions on withdrawal which did not contain a telephone number. The car was handed over to the claimant in August 2022.

Some 10 months after the handover of the car, the claimant gave notice of his withdrawal from the sales contract by e-mail. The claimant argued that since no telephone number had been given, he was entitled to an extended right of withdrawal, even after the expiry of the regular 14-day withdrawal period.

The claimant sued for, among other things, repayment of the purchase price plus interest in return for the handover of the car and transfer of ownership thereof. The claimant was unsuccessful in the lower instances, most recently before the Berlin Higher Regional Court, which denied the claimant leave to file an appeal on points of law. In its decision, the Federal Court of Justice dismissed the claimant’s complaint against the denial of leave to appeal.

Like the lower-instance court, the Federal Court of Justice fully adopted the defendant’s view and held that the defendant is not obliged to provide a telephone number in its individually drafted instructions on withdrawal if the defendant’s postal address and e-mail address are given. As a result, the claimant’s withdrawal occurred after the expiry of the withdrawal period and, therefore, is invalid.

The Federal Court of Justice interpreted the Consumer Rights Directive 2011/83/EU (“CRD”), which has been transposed into German law by Article 246a § 1 para. 2 sentence 1 no. 1 Introductory Act to the German Civil Code, and emphasised that the CRD does not provide for an obligation to give a telephone number. The Federal Court of Justice further held that there is no misleading of consumers if a telephone number which is available and can be easily found on the Internet is not expressly stated in the instructions on withdrawal.

The Federal Court of Justice started by establishing that the wording of the CRD does not give an answer to the question of what means of communication must be stated in individually drafted instructions on withdrawal in connection with distance contracts or whether a telephone number must be provided in addition to the postal address and the e-mail address. The Federal Court of Justice answered this question based on the context and the regulatory purpose of the CRD.

As regards the context of the CRD, the Federal Court of Justice found that the EU legislature did not provide for the provision of a telephone number in Article 6(1)(h) CRD. Said provision only requires the trader to provide information on the conditions, time limit and procedures for exercising the right of withdrawal. Other provisions, however, contain rules in respect of the telephone number (for example, Article 6(1)(c) and Article 5(1)(b) CRD). According to the Federal Court of Justice, an obligation to provide a telephone number also cannot be derived from the model instructions on withdrawal, where a telephone number is to be given. This is because, from a systematic perspective, the model instructions are only of secondary importance (Article 6(4) CRD) and therefore, in the opinion of the Federal Court of Justice, cannot be applied to the present case of individually drafted instructions on withdrawal. On the contrary, the Federal Court of Justice pointed out that the EU legislature, in the recitals of the CRD, even advised against making a phone call in view of the allocation of the burden to prove that the withdrawal occurred within the time limits fixed in the CRD.

In addition to context, the regulatory objectives of the CRD also speak against an obligation to provide a telephone number, in the opinion of the Federal Court of Justice. According to the European Court of Justice (“ECJ”), the aim is to ensure that the consumer obtains not only information about the other contracting party but also the information needed to validly exercise his/her right of withdrawal (cf. ECJ, judgment of 10 July 2019 - C-649/17, NJW 2019, 3365, margin no. 41 - Amazon EU). This includes information about rapid contact and efficient communication by means of suitable means of communication, with the assessment of the means of communication being a matter for the national courts (EJC, l.c.). The Federal Court of Justice emphasised that rapid contact and efficient communication with the defendant, which operates on the Internet, does not require the provision of a telephone number in addition to the postal address and the e-mail address. What is more, in the matter dealt with by the Federal Court of Justice, the telephone number had been given on the website, which, according to the Federal Court of Justice, has been expressly approved by the ECJ (ECJ, judgment of 10 July 2019 - C-649/17, NJW 2019, 3365 margin no. 52 - Amazon EU).

The Federal Court of Justice also dealt with the question of whether the provision of – allegedly – incomplete information would actually prevent the withdrawal period from starting to run.

In the opinion of the Federal Court of Justice, this would require not only formally incomplete or incorrect information, but also that the consumer was misled by such information and was thus induced to enter into a contract which he/she might not have entered into had he/she been in possession of complete and correct information. Only if all of these requirements are fulfilled are instructions defective. This follows from the applicable principles established by the EJC in its ruling on the Consumer Credit Directive (2008/48/EC) (ECJ, judgment of 21 December 2023 - C-38/21, C-47/21, C-232/21, juris margin no. 253, 264 - BMW Bank).

According to the Federal Court of Justice, the fact that the telephone number – which had already been communicated and could be easily found on the Internet – was not included in the instructions on withdrawal did not affect the consumer’s ability to exercise his right of withdrawal and, therefore, did not mislead the consumer. In particular, it did not affect the timely exercise – within the withdrawal period – of the right of withdrawal, as the defendant provided information about other ways to contact it, without excluding the option of a telephone call.

The Federal Court of Justice expressly refrained from applying to this case the EIS ruling, according to which a telephone number must be provided. The EIS ruling concerned the use of model instructions on withdrawal, rather than individually drafted instructions, and a violation of competition law (German Act against Unfair Competition).

The Federal Court of Justice takes the view that the validity of the instructions on withdrawal issued without providing a telephone number and also the fact that there has been no misleading of consumers are so obvious in this case as to leave no room for reasonable doubt and, therefore, has refrained from requesting a preliminary ruling from the ECJ.

The Federal Court of Justice commented remarkably fast and in remarkable detail on the legal issues raised in the test case, thus providing legal certainty for the lower courts that have to deal with a large number of lawsuits, for the defendant, and also for the suing consumers.

The decision of the Federal Court of Justice is to be welcomed. While consumer protection is important, the requirements should not be exaggerated. In the cases brought against the defendant, the 14-day period had long expired when the claimants had the idea to withdraw from their sales contracts regarding the purchase of expensive new vehicles and, to this end, started to look for “formal errors”. According to the Federal Court of Justice, such an error can only have adverse consequences for the distance seller if the information it failed to provide was mandatory and the non-availability of this information actually misleads the consumer, resulting in the consumer being unable to properly (timely) exercise his/her right of withdrawal. Despite this fact, distance sellers should be careful. Even the slightest error in instructions can lead to a flood of lawsuits. And even if the distance seller ultimately wins those lawsuits, the reputational damage and the internal and external costs involved in the proceedings should not be underestimated.