The matter at hand
Starman, a provider of telecommunication and Internet services, made available to consumers who had already concluded a contract with it, for matters relating to that contract, first, a landline number at the basic rate and, second, a speed dial number at a rate higher than the basic rate.
Taking the view that Starman thereby violated Article 21 of the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, the Consumer Protection Board of Estonia issued an order against Starman to cease to offer consumers a speed dial number at a rate higher than the basic rate.
The action for annulment having been rejected by both the Tallinna Halduskohus (Administrative Court, Tallin) and the Tallinna Ringkonnakohus (Court of Appeal, Tallin, Estonia), Starman brought an appeal in cassation before the Riigikohus (Supreme Court, Estonia). This court stayed the proceedings and asked the ECJ, in essence, whether the use of a speed dial number at a rate higher than the basic rate is permissible, where the consumer has chosen that means of communication, even though he was given, in parallel, the option of using a number at the basic rate. According to the referring court, if the additional costs of a speed dial number were to be borne by the trader, this could lead to a situation in which traders cease to offer speed dial numbers. In addition, the referring court asked to which extent the trader must inform consumers using a speed dial number at a higher rate for issues not related to the contract concluded of the existence of a number at the basic rate and of differences in call prices.
The judgment of the ECJ
The ECJ recalls that Article 21 of the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights provides that where the trader operates a telephone line for the purpose of communications regarding the contract concluded, consumers, when contacting the trader, are not bound to pay more than the basic rate for calls to that line. Therefore, “where a consumer exercises his rights under the directive by means of telephone calls, a trader may impose on him only those costs that do not exceed the cost corresponding to the basic rate” (paragraph 25).
Considering, further, the objective of a high common level of consumer protection which the directive aims to guarantee, the ECJ rules that Article 21 of the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights “must be interpreted as precluding a trader from charging a consumer who has already concluded a contract with him a higher rate than the basic rate, where that consumer contacts him by telephone in relation to that contract, regardless of the type of telephone numbers offered by the trader” (paragraph 30).
The ECJ clarifies that this interpretation is in no way called into question by the fact that the trader has informed the consumer of the existence of a telephone number at the basic rate, as that does not release the trader from his obligation not to charge a consumer who has already concluded a contract with him more than the basic rate where the consumer contacts him by telephone in relation to that contract. The same applies to the fact that the consumer, when contacting the trader, chose voluntarily to use the speed dial number with a higher rate considering that it follows from Articles 21 and 25 of the directive read together, that the consumer cannot voluntarily waive his rights under the directive and pay more than the basic rate.