According to the first paragraph of Article 21 of Directive 2011/83, ‘Member States shall ensure that where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate’.

In the absence of any definition of the concept of ‘basic rate’ in Directive 2011/83 and in the legal framework created by the EU legislature in relation to the provision of telecommunications services,  6 See, in particular, Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51). it is clear from the settled case-law of the Court that the meaning and scope of terms for which EU law provides no definition must be determined by reference to their usual meaning in everyday language, while account is also taken of the context in which they occur and the purposes of the rules of which they form part.  7 Judgment of 24 June 2015, Hotel Sava Rogaška (C‑207/14, EU:C:2015:414, paragraph 25 and the case-law cited).

As to the usual meaning given to the concept of ‘basic rate’ in German, it suggests, as the referring court has argued, the concept of ‘local rate’, which designates the cost of a local call to an ordinary number. The referring court also states that the interpretation of that concept is not uniform in Germany.  8 According to one interpretation, Paragraph 312a(5) of the BGB is not regarded as a faithful transposition of Article 21 of Directive 2011/83 in that, although it precludes the direct passing on to the trader, in a visible manner, of the charges incurred for using the telecommunications service, it does not preclude, in particular, the frequent case of ‘cross-subsidies’, which enable a trader to obtain, either at an advantageous price or free of charge, other telecommunication services provided by the same service provider in exchange for a surcharge on the telephone helpline. On the other hand, according to another opinion, the concept of ‘basic rate’ must be understood as also including the charge to be paid to the telecommunications service provider for the use of the telephone helpline, even where the telecommunications service provider does not pass on any payment to the trader for the call.

In that regard, it is clear from settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Provisions of EU law must be interpreted and applied in a uniform manner, in the light of the versions established in all the languages of the European Union. Where there is divergence between the various language versions of a provision of EU law, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part.  9 Judgments of 27 October 1977, Bouchereau (30/77, EU:C:1977:172, paragraph 14); 19 September 2013, Brey (C‑140/12, EU:C:2013:565, paragraph 74), and 7 July 2016, Ambisig (C‑46/15, EU:C:2016:530, paragraph 48).

In the present case, as the Commission has rightly observed, even though there is, in principle, no textual ambiguity in the various language versions,  10 In particular, the Bulgarian (основната тарифа), German (Grundtarif), Estonian (põhitariifi), Spanish (tarifa básica), Italian (tariffa di base), Lithuanian (bazinė kaina), Polish (taryfa podstawowa) and English (basic rate) language versions. in view of the diversity of the rates proposed to end users for the provision of telecommunications services in the Member States  11 The rates may, in particular, be calculated on the basis of the type (local or long-distance) and duration of the calls, possibly in combination with a flat rate. In the Commission’s view, none of those various interpretations can be excluded on the basis of the usual meaning of the concept of ‘basic rate’. In that regard, it is clear from the Finnish Government’s observations that Chapter 2, Article 14, of the Kuluttajansuojalaki (Law on consumer protection) provides that the term ‘basic rate’ means, in particular, any rate laid down by a consumer’s subscription contract. and the rapid changes observed in the dynamic telecommunications sector, it does not appear to be possible to determine the usage in everyday language of the concept of ‘basic rate’. Consequently, the ordinary meaning of the terms used in the other language versions clearly does not, in itself, enable a reply to be given to the question referred for a preliminary ruling.

The concept of ‘basic rate’ must therefore be interpreted by reference to the general scheme, purpose and regulatory context of Directive 2011/83. The legislative history of that directive may also be a reliable source making it possible, to some extent, to trace the EU legislature’s intention in a sensitive area such as that of consumer protection.

Article 21 of Directive 2011/83 must be interpreted in the light of the surrounding provisions in that directive.

In that regard, it should be noted that Article 6(1)(f) of Directive 2011/83, which concerns pre-contractual information requirements for distance and off-premises contracts, also uses the term ‘basic rate’. That provision states that the trader must inform the consumer before concluding the contract of ‘the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate’.  12 That provision is similar to Article 4(1)(g) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19), which was repealed by Directive 2011/83. Emphasis added.

In the Commission’s view, that requirement to inform the consumer enables him to decide whether or not to agree to the conclusion of the contract with the trader in the knowledge of the cost of using the means of distance communication.  13 In that regard, I note that recital 12 of Directive 97/7 states that ‘in the case of communication by telephone it is appropriate that the consumer receive enough information at the beginning of the conversation to decide whether or not to continue’. The Commission also states that only charges that can be regarded as being at a ‘basic rate’ within the meaning of Article 6(1)(f) of Directive 2011/83 are those which the consumer must expect, that is to say those of a normal telephone call, charged as a call to a standard (geographic) fixed or mobile telephone line. Since the consumer is aware of these charges on the basis of the contract concluded with his telecommunications service provider, no information requirement is imposed on the trader in that article. On the other hand, if the telephone communication between the consumer and the trader is established by a call number resulting in costs for the consumer exceeding those of a normal standard (geographic) fixed or mobile telephone call, the consumer must be informed by the trader in a clear and comprehensible manner.

If the interpretation of Article 6(1)(f) of Directive 2011/83 and of the concept of ‘basic rate’ contained in it supports the fact that it covers only the costs normally incurred for a standard (geographic) fixed or mobile telephone call, the same must apply in my view to the interpretation of ‘basic rate’ within the meaning of Article 21 of that directive.

Therefore, placed in its context, Article 21 of Directive 2011/83 must be interpreted as referring only to costs incurred by the consumer when making a call to a standard (geographic) fixed or mobile telephone line number.

That is the only interpretation which can ensure fulfilment of the objectives pursued by Directive 2011/83, as I shall now endeavour to show.

The objective of Directive 2011/83, applied in Article 1 thereof, is ‘through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market’.  14 See also recital 4 of that directive.

In that regard, recitals 3  15 I note that recital 3 of Directive 2011/83 states that ‘Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through the measures adopted pursuant to Article 114 thereof’. to 5 and 7 of Directive 2011/83 point out that the purpose of the directive is to contribute to a ‘high level of consumer protection’. In particular, recital 7 of the directive states that ‘consumers should enjoy a high common level of protection across the Union’.  16 I also note that Article 38 of the Charter of Fundamental Rights of the European Union provides that ‘Union policies shall ensure a high level of consumer protection’.

According to the Netherlands Government, the German legislation at issue in the main proceedings does not run counter to Article 21 of Directive 2011/83 or, in particular, to the objective of consumer protection referred to in recitals 3 to 5 and 7 and Article 1 of that directive. In fact, unlike the Estonian  17 In its written observations, the Estonian Government submits that, under Article 281(3) of the Võlaõigusseadus (Law on the law of obligations), which transposes the first paragraph of Article 21 of Directive 2011/83, the trader cannot require the consumer to pay an additional charge when the consumer contacts him. Thus, that government states that, when transposing Directive 2011/83 into Estonian law, it based its approach on the raison d’être of the first paragraph of Article 21 of that directive, which is to ensure that the consumer, when contracting the trader, is not bound to pay a rate additional to that of an ordinary telephone call. and Lithuanian Governments, the Netherlands Government considers that the concept of ‘basic rate’ includes additional costs of the information rate arising from the provision of the service number concerned.  18 According to the Netherlands Government, the total cost that a consumer pays for a service number is divided into two rates. They are, first, the traffic rate, that is to say the rate that the consumer pays for the electronic communication service itself, in particular the cost charged for a call to a standard (geographic) fixed or mobile telephone number, and, secondly, the information rate, that is to say the rate supplement which is fixed by the trader and consists in a surcharge which the trader applies for the provision of information services, in this case, the service number. According to that government, the additional services which the telecommunications service provider provides to the trader are, in particular, the queuing and menu choice functions.

I am not convinced by that argument.

Recital 2 of Directive 2011/83 states that that directive moves away from the minimum harmonisation approach in Directives 85/577/EEC  19 Council Directive of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31). and 97/7 towards full harmonisation. Thus, in the interest of legal certainty, the objective of ‘enjoy[ing] a high common level of protection across the Union’ is achieved by full harmonisation of certain essential aspects of contracts between undertakings and consumers.  20 Recital 7 of Directive 2011/83 states that ‘full harmonisation of some key regulatory aspects should considerably increase legal certainty for both consumers and traders. … The effect of such harmonisation should be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. Those barriers can only be eliminated by establishing uniform rules at Union level. Furthermore consumers should enjoy a high common level of protection across the Union.’ Therefore, under Article 4 of Directive 2011/83, ‘Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive’, and I would point out that there is no such other provision in respect of Article 21 thereof.  21 According to recital 13 of Directive 2011/83, Member States ‘may … maintain or introduce national legislation corresponding to the provisions of this Directive, or certain of its provisions, in relation to contracts that fall outside the scope of this Directive’. However, that margin of freedom concerns only the treatment of matters not governed by the directive, which, I insist, is not the case with Article 21 of the directive.

As the Estonian and Lithuanian Governments and the Commission have rightly pointed out, Article 21 of Directive 2011/83 concerns the situation in which, after the contract has been concluded, a consumer contacts the trader about the contract, in particular in order to clarify matters relating to its implementation  22 In particular, in order to determine a delivery date or in respect of matters relating to billing. or, following its implementation, in order to assert rights to a guarantee or seek a legal remedy. As it is the trader who installs the telephone line through which he can be reached, it is in his power to influence the amount of the costs charged to consumers when the call is received. In fact, if the trader opts for a standard (geographic) fixed or mobile line number, the consumer’s call to the trader incurs only costs calculated on the basis of the contract concluded between the consumer and his telecommunications service provider. On the other hand, if the trader opts for a special telephone line with call rates higher than normal market rates, there is a risk that in an attempt to save money a consumer will avoid, to his own detriment, telephone contact with the trader because he would thereby incur additional costs.

Therefore, a higher rate than that for a normal telephone line would be likely to deter consumers from contacting the trader because of the additional costs which that would entail.  23 In that regard, the legal literature states that ‘the purpose of Article 21 of Directive 2011/83 is … to prevent overcharging of calls to helpline services offered by the trader. That protective provision therefore sounds the death-knell for additional charges for after-sales telephone services …’. See, Pôle de droit privé de l’Université Saint-Louis — Bruxelles, ‘La directive 2011/83/UE du 25 octobre 2011 relative aux droits des consommateurs’, Revue générale de droit civil belge, 2013, No 4, pp. 174 to 207, and, in particular, pp. 204 and 206. See also, Laffineur, J., and Stretmans, G., ‘La directive 2011/83 relative aux droits des consommateurs: les modifications de la réglementation concernant les ventes aux consommateurs et les “autres droits des consommateurs”’, Revue européenne de droit de la consommation, 2013, No 3, pp. 475 to 498. Those authors state that the EU legislature has not tackled the issue of, sometimes long, telephone waiting times before the person being called actually answers. See, in that regard, Rott, P., ‘More coherence? A higher level of consumer protection? A review of the new Consumer Rights Directive 2011/83/EU’, European Journal of Consumer Law, 2012, No 3, pp. 371 to 392, and, in particular, p. 391. Moreover, it is clear from the general scheme of the directive that there is an irrebuttable presumption that the telephone assistance service is included in the parties’ expectations and therefore in the price already paid by the consumer. The use of a premium rate number would amount to making the consumer pay additional costs for the same service.  24 See, in that regard, point 42 of this Opinion. This is all the more true if the item which is the subject of the contract is of low value.

Such an interpretation of the first paragraph of Article 21 of Directive 2011/83 is not called into question by the second paragraph thereof, which simply states that the ‘first subparagraph shall be without prejudice to the right of telecommunication services providers to charge for such calls’. I agree with the argument of the Lithuanian Government and of the Commission that the decisive factor is the fact that the charge to the consumer cannot be higher than that for a standard call at normal market prices.

In my view, the full harmonisation established by Directive 2011/83 and the high level of consumer protection would risk losing their effectiveness if the Court adopted in this case an interpretation of Article 21 of Directive 2011/83 that enabled Member States to introduce at national level provisions such as the one at issue in the main proceedings which do not include only normal market charges for a telephone call to a standard (geographic) fixed or mobile line number.

As I shall now explain, that interpretation is also supported by the legislative history of Article 21 of Directive 2011/83.

The schematic and teleological interpretations of Article 21 of Directive 2011/83 outlined in points 29 and 39 of this Opinion are also consistent with the legislative history of that provision.

Having established, in the course of the legislative procedure,  25 Proposal for a Directive of the European Parliament and of the Council on consumer rights, COM(2008) 614 final. the lack of uniform rules concerning chargeable telephone services providing customer assistance, the European Parliament had proposed, in its Amendment 1378, to add a (new) Article 28a entitled ‘Communication and contactability’.  26 Doc. PE452.545v01-00, Justification of Amendment 1378. The justification for that amendment was that ‘traders increasingly transfer their customer assistance and complaint services to call centres. Consumers then sometimes incur considerable charges when they are referred to chargeable service numbers … Communication and contactability should therefore be provided for in legislation as secondary contractual obligations for which no additional remuneration is required during the existing contractual relationship or during the guarantee period’.  27 Doc. PE452.545v01-00, Justification of Amendment 1378. Emphasis added.

In that regard, the Commission, in its written submissions, asserted that the concept of ‘basic rate’ was introduced when the Parliament’s proposal was approved and reworded.  28 See Amendment 165, Proposal for a directive, Article 28a (new), doc. P7_TA(2011)0116 (OJ 2012 C 247 E, p. 99). Thus, at first reading, following an agreement between the Parliament and the Council of the European Union, the proposal for a directive containing Article 21 was adopted.  29 See document 9507/11 CONSOM 65 JUSTCIV 107, pp. 4 and 15. The EU legislature’s objective was therefore to protect consumers from excessive communication costs where they wish to call the trader or his assistance service by telephone in relation to a contract which has already been concluded.

That this was the EU legislature’s intention is also borne out by the DG Justice Guidance Document concerning Directive 2011/83.  30 DG Justice Guidance Document concerning Directive 2011/83/EU, June 2014, p. 62. In paragraph 10 of that document, it is stated, first, that the objective of Article 21 of the directive is to ‘protect consumers against additional charges if they need to call the trader with whom they have concluded a contract, for example, if they have a complaint’, and secondly, that ‘such telephone calls must not require the consumer to pay more than the “basic rate”. Although the Directive does not give an explicit definition of the basic rate, its rationale is to require traders to ensure that the consumers do not pay more than the pure cost of the electronic communications service for calls subject to Article 21’.  31 Emphasis added. That document also states that, to comply with that ‘basic rate’ requirement, ‘traders should use telephone numbers such as standard (geographic) fixed or mobile numbers that are not subject to any special tariff regime. Non-geographic numbers that electronic communications service providers normally include in their offers of “bundles” of minutes at a fixed monthly price, and numbers charged at no more than rates for calls to geographic numbers would also be examples of numbers charged at the basic rate’.  32 That document states that, by contrast, ‘traders should, in particular, avoid using those telephone numbers that enable them to finance or contribute to the costs of call centres or draw additional revenues from these telephone calls through revenue sharing with telecom operators, such as Premium Rate Service (PRS) numbers’. See DG Justice Guidance Document concerning Directive 2011/83/EU, June 2014, p. 63. Emphasis added.

In my view, it clearly follows from points 25 to 40 of this Opinion that an interpretation of Article 21 of Directive 2011/83 to the effect that the concept of ‘basic rate’ covers all costs arising from the use of the telecommunications service, whatever the amount of the costs, would run counter to the regulatory objective pursued by the EU legislature.