§9 Communication by telephone

Article 21 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. The first subparagraph shall be without prejudice to the right of telecommunication services providers to charge for such calls. The objective of this provision 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. Such telephone calls must not require the consumer to pay more than the ‘basic rate’. Directive (EU) 2019/2161 amended Article 3(3)(k) of the CRD extending the scope of application of Article 21 to cover also passenger transport services. Although the CRD 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. This was confirmed by the Court in case C-568/15 noting that the ‘basic rate’ corresponds to the standard cost of an ordinary call that a consumer would expect to incur and for which a trader is not required to inform the consumer of its amount (152). In other words, call charges must not exceed the cost of a call to a standard (geographic) landline or mobile telephone numbers. 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. In contrast, numbering ranges that are normally subject to special tariff regime will likely not comply with the ‘basic rate’ requirement. Typically, the so-called Premium Rate Service (PRS) numbers enable their users (traders) to finance or contribute to the costs of call centres or draw additional revenues from these telephone calls through revenue sharing with telecom operators. In practice, the calls to the PRS telephone numbers are very unlikely to be charged at the ‘basic rate’. At the same time, the Court also clarified in Case C-568/15 that, as long as the ‘basic rate’ rule is respected, it does not matter whether the trader makes profit through such calls (153). Although Article 21 limits the cost of the telephone calls, the actual price of calling the trader for the purposes covered by Article 21 will continue to vary for different consumers depending on the electronic communications service provider chosen for the call. The notion of the ‘basic rate’ for the purposes of the CRD should not be understood as obliging traders to use so called ‘free-phone’ numbers, which are generally free to the caller. Nor should it be interpreted as obliging the trader to choose a particular telecom provider or to switch from mobile to fixed telephony or vice versa. Article 21 should not affect the existing differences between the domestic, international and mobile roaming call rates charged by the providers of electronic communications services. So, a consumer calling a seller based in a different Member State may pay more for that call than that trader’s domestic customers. The Court’s judgment in case C-332/17 Starman (154) dealt with the situation where the trader makes available to its consumers, for the purposes covered by Article 21, both a number charged at basic rate and a speed dial number charged at a rate higher than the basic rate when calling from mobile phones. The Court held that, also in such a situation, Article 21 precludes a trader from charging a consumer a higher rate than the basic date. This applies irrespective of whether the trader has informed the consumer in a comprehensible and easily accessible manner of the existence of an alternative telephone number charged at the basic rate and the consumer has nevertheless voluntarily chosen to use another number for the purposes of Article 21: ‘The first subparagraph of Article 21 of Directive 2011/83/EU […] must be interpreted as precluding a situation in which, if a trader has made available to all its customers one or more speed dial numbers at a rate higher than the basic rate, consumers who have concluded a contract with the trader in question pay more than the basic rate when contacting that trader by telephone in relation to that contract.’ (155). Accordingly, even if the consumer has (mistakenly) used the more expensive alternative telephone number rather than the number charged at the ‘basic rate’, such consumer is still entitled to paying only the ‘basic rate’ for the call concerned. In order to ensure the exercise the right provided in Article 21 in such a case, the consumer must have access, under national law of the Member State concerned, to appropriate remedies, i.e. possibility to claim compensation for the price paid exceeding the basic rate. The Court’s judgment does not per se prohibit traders from using different types of numbers for purposes other than those covered by Article 21, e.g. for placing reservations. However, when doing so such traders should pay particular attention to ensuring that consumers use the right number, i.e. the number charged at the basic rate when calling for purposes covered by Article 21.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07