The matter at hand

DHL Paket runs an online sales platform called ‘MeinPaket’ on which more than 2500 traders offer over 5 million products for sale. The sales transactions do not give rise to any contract between DHL Paket and the purchasers, but only between the relevant traders and the purchasers.

The dispute in the main proceedings concerns an advertisement published at the request of DHL Paket, which presented five different products offered for sale through ‘MeinPaket’. Readers interested in one of these products were invited to visit ‘MeinPaket’ and enter the code corresponding to the product mentioned in the advertisement. Readers were then transferred to the site of the product concerned where the identity of the commercial seller of that product was mentioned, as well as details of its trading name and geographical address.

A German trade association of suppliers of electrical products (VSW) subsequently initiated proceedings  seeking that DHL Paket be ordered to cease the dissemination of the advertisement, claiming that Article 7(4) of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market required DHL Paket to state the identity and geographical address of the suppliers of the relevant products in the advertisement itself and that by neglecting to do so, DHL Paket had not met its obligations under that directive.

In those circumstances, the referring German court asked the ECJ, in essence, whether the geographical address and identity of the trader must be included in a printed advertisement for specific products, where those products are purchased by consumers via the website, given in the advertisement, of the undertaking which is the author of that advertisement and that information is readily accessible on or via that website.

The judgment of the ECJ

The ECJ first of all holds that the relevant advertisement constitutes an invitation to purchase “since the information it contains on the products advertised and their price is sufficient to enable the consumer to make a transactional decision” (paragraph 25).

Secondly, the ECJ recalls that Article 7(4)(b) of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, under which the geographical address and identity of the trader constitute material information which must in principle be included in the invitation to purchase,  must be read in conjunction with Article 7(1) thereof, according to which the commercial practice at issue must be assessed having regard, inter alia, to its factual context and the limitations of the medium of communication used (paragraph 26).

With reference to the Ving Sverige judgment (C-122/10), the ECJ notes that in deciding whether information has been omitted account must be taken “of the limitations of space and time of the medium of communication used and of the measures taken by the trader to make that information available to consumers by other means” (paragraph 27). “It follows that the extent of the information relating to the geographical address and the identity of the trader which has to be communicated, by a trader, in an invitation to purchase, must be assessed on the basis of the context of that invitation, the nature and characteristics of the product and the medium of communication used” (paragraph 28).

In this context, the ECJ holds that in a situation where an online sales platform is advertised in a print medium and where, in particular, a large number of sales options offered by various traders are presented in that advertisement, there may be limitations of space within the meaning of Article 7(3) of the directive (paragraph 29).

On this basis, the ECJ concludes that “although the information on the geographical address and identity of the trader, referred to in Article 7(4)(b) of [the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market], must in principle be included in the invitation to purchase, that need not necessarily be the case where the means of communication used for the purposes of the commercial practice imposes limitations of space, in so far as the consumers who may purchase the products advertised via the website, mentioned in the advertisement, of the undertaking advertising those products may easily obtain that information on or via that website (paragraph 30).

Lastly, the ECJ rules that the obligation to include in an invitation to purchase the address and identity of the supplier, does not depend on the issue of whether the supplier of the products concerned is the author of that invitation or a third party (paragraph 31).