Back in March of this year, the German Bundestag and Bundesrat passed the "Act Amending the German Civil Code to Improve Consumer Protection from Cost Traps in Electronic Commerce". As part of this law, the already extensive information obligations to consumers under Article 246 §§ 2 to 3 of the Introductory Act to the German Civil Code (EGBGB) were extended even further. The Act, which was promulgated in the Federal Law Gazette on May 16, 2012, adds three paragraphs to § 312 g BGB.
The law comes into force on August 1, 2012.
All online shop operators are therefore now obliged to adapt their shops to the new legal situation.
It should be noted that § 312 g para. 2, 3 BGB only refers to contracts between consumers and entrepreneurs and that the regulations are therefore not applicable to purely entrepreneurial transactions (B2B). However, most internet shops are accessible to both entrepreneurs (B2B) and consumers (B2C), so that the new regulations must also be observed in these internet shops. In all internet shops where it cannot be safely ruled out that consumers cannot also place orders there, it should be ensured that the provisions of § 312 g para. 2, 3 BGB are observed.
Button obligation
Due to the legal regulations, it is now necessary to use a "button" within the ordering process that clearly indicates the obligation to pay. This is to inform the consumer once again in a clear and unambiguous manner before sending his order that he enters into a payment obligation if he presses this "button".
Due to the newly introduced legal regulations, all online shop operators are therefore obliged to provide the button for submitting the order with a clear indication that the customer has an obligation to pay when submitting/sending the order.
According to the statutory provision in § 312 g para. 3 sentence 2 of the German Civil Code (BGB), a button inscription with the words
"Order with obligation to pay"
explicitly mentioned. However, if the consumer is clearly and unambiguously informed that he/she is triggering a financial obligation by placing an order, other labels for the "button" should also be permissible. In the explanatory memorandum to the law, for example, the following formulations were mentioned as further labels
- order with costs;
- conclude a payable contract;
- buy
called.
In order not to run any risks, online shop operators should therefore choose one of the aforementioned designations for their order button. Furthermore, the button inscription must be easily legible and the text must not contain any other text.
The order button must be placed below the entire order and thus also graphically "conclude" the entire order process. The order button that concludes the order must also be the only order button. The use of several buttons is probably not permitted.
Further information duties / problem point "order overview
In addition to the already existing information obligations, the law also imposes additional new information obligations on online shop operators. Most internet shop operators will therefore probably also have to adapt the order sequence and their "order overview" concluding the order to the new legal situation.
At the end of the ordering process, it is now obligatory that an order overview, which most online shops already have, must contain a product description of the articles present and mentioned there. In this respect, the law provides in § 312 g that
"...a detailed and clear description without prolixity, from which the consumer can extract characteristics that are decisive for his purchase decision. "
is present.
In addition, further information must be provided to the consumer "immediately before the consumer places his order, in a clear and comprehensible manner and in a prominent manner":
- the essential characteristics of the goods or services (product description);
- the minimum term of the contract if the contract concerns a permanent or regularly recurring service;
- the total price of the good or service including all related price components as well as taxes paid via the trader, or if no exact price can be indicated, its basis of calculation which enables the consumer to verify the price;
- any additional delivery and shipping costs as well as an indication of possible further taxes or costs which are not paid via or invoiced by the trader.
At the time of ordering, the consumer must therefore be able to take note of all the information relevant to the order.
For most of the "order summaries" used so far, the previous indication of the essential characteristics of the goods or services is likely to be problematic.
It has not yet been clarified how extensive and detailed the product descriptions within the order overview must be presented according to the new legal situation. In some "order overviews", however, the product descriptions have so far been very brief and not very informative. Whether such very brief order overviews are still sufficient under the legal situation applicable as of 01.08.2012 will only become clear on the basis of case law after the law comes into force.
At any rate, it is currently advisable for all online shop operators to have their shop systems checked by a specialised lawyer. The extent to which online shop traders must adapt their shop systems and/or their shop with regard to the legal regulations applicable as of 01.08.2012 must be checked individually in each case.
It should be noted that if adjustments to the shop system are necessary and these are not made, this will result in,
1. in the event of a breach of the new legal regulations, no legally valid contract between the seller (online trader) and the buyer will come into existence.
Furthermore, a violation of the legal situation applicable as of 01.08.2012 constitutes a violation of competition law which can be subject to a warning.
Please do not hesitate to contact us if you have any questions on this topic.
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law (IT law)
E-mail: info@goldberg.de
