Telephone number in the cancellation information is mandatory!

Must traders provide a telephone number in the cancellation information? This question has now been clarified by the Federal Court of Justice (BGH) with the assistance of the Court of Justice of the European Union (EuGH).

A trader served a cease-and-desist notice on his competitor. The reason for the cease-and-desist notice was, among other things, the use of an allegedly defective cancellation information, as this should also contain the telephone number in the trader's view. The trader demanded that his competitor execute a binding declaration of cessation and reimburse the costs of the cease-and-desist notice.

The competitor then issued the declaration of cessation. In return, he then served a cease-and-desist notice on the trader, complaining that the latter had also not provided a telephone number in the cancellation information.

The cease-and-desist proceedings concerning the telephone number in the cancellation information resulted in legal proceedings that concerned not only the BGH but also the EuGH.

Is a telephone number in the cancellation information mandatory?

In principle, the consumer is entitled to a right of cancellation for contracts concluded outside of business premises and for distance selling contracts. The trader is obliged to inform the consumer of the conditions, time-limits and procedures for exercising a right of cancellation to which the consumer is entitled.

The trader may fulfil this information obligation by transmitting a model cancellation information properly completed in textual form.

The model cancellation information contains the following notice:

"To exercise your right of cancellation, you must inform us (2) by means of an unequivocal statement (e.g. a letter sent by post, fax or e-mail) of your decision to cancel this contract." In the drafting instructions it states with regard to (2): "Insert your name, your address and, where available, your telephone number, fax number and e-mail address."

The question that the BGH had to clarify was whether the telephone number in the present facts should be regarded as "available" within the meaning of the model mentioned above and thus had to be provided in the cancellation information.

BGH on the telephone number in the cancellation information

The Federal Court of Justice (BGH) (Urt. v. 24.09.2020, Az. I ZR 169/17) has decided that it constitutes an infringement of competition law insofar as a trader does not provide the telephone number "available" to him in the cancellation information.

Before the highest judges reached this assessment, however, they referred several questions to the EuGH regarding the obligation to provide a telephone number in the cancellation information. The EuGH then decided that a telephone number within the meaning of the drafting instructions to the model cancellation information should be regarded as "available" if it is displayed on the trader's website in such a way as to suggest to an average consumer that the trader uses this telephone number for his contacts with consumers. The decision of the EuGH is also addressed in this article.

This would be the case, among other things, if the telephone number were provided on the website under a section designated "Contact".

The BGH established, on the basis of these principles, that the trader had not inserted a telephone number at the designated place in the information form, although he maintained a business telephone line. This is because the telephone number of this telephone line was mentioned in the context of the imprint and was clearly and prominently displayed in the lower area of the homepage of the internet site.

Under these circumstances, the trader also had to provide the telephone number in the model cancellation information, even if, as he claimed, he did not conclude contracts by telephone.

Conclusion

Traders must provide a telephone number in the cancellation information if they mention it elsewhere on their website and the telephone number is used from the consumer's perspective for contact between the trader and the consumer. If, therefore, a telephone number is mentioned under "Contact" or "Imprint", it must also be included in the cancellation information.