In October 2011, the European Parliament and the Council of the European Union adopted the Directive on Consumer Rights (Directive 2011/83/EU). It essentially contains regulations for online and mail order business as well as for doorstep selling. However, it also regulates the pre-contractual information obligations for purchases in "normal" shops of the stationary retail trade.
On 19 December 2012, the Federal Cabinet adopted a government draft for the implementation of the Consumer Rights Directive and forwarded it to the Bundestag via the Bundesrat for consultation. On 14 June 2013, the German Bundestag passed the Act on the Implementation of the Consumer Rights Directive, more precisely the Act on the Implementation of the Consumer Rights Directive and on the Amendment of the Act on the Regulation of Residential Mediation.
One of the main aims of the directive is to strengthen the EU's internal market. Cross-border contracting should be easier and subject to uniform rules. The Directive is therefore based on the principle of full harmonisation, which does not allow deviating national regulations. However, due to area exceptions and opening clauses, the member states have the possibility to provide for or maintain deviating regulations with a different level of consumer protection in many areas. The new regulations come into force on 13 June 2014.
In the Act Implementing the Consumer Rights Directive and Amending the Act Regulating Residential Mediation, the following regulations are to be highlighted with regard to online trading:
New cancellation policy coming:
Since the new legal regulation introduces a uniform European right of withdrawal with numerous changes, it is also necessary to use a new cancellation policy.
Withdrawal period 14 days:
In the future, the revocation period will be 14 days throughout Europe.
The "perpetual" right of revocation no longer applies:
The revocation period in the event of missing or incorrect instructions is twelve months after the expiry of the original revocation period - i.e. generally twelve months and fourteen days after receipt of the goods. Up to now, the exercise of the right of withdrawal has been possible "forever" in the event of missing or incorrect information on the right of withdrawal.
Internet entrepreneurs now only have to pay the "standard" shipping costs:
In the event of revocation, entrepreneurs must now only reimburse the standard shipping costs. If a consumer has requested a special form of shipping, such as express shipping, and this has resulted in additional costs, these additional costs do not have to be reimbursed by the entrepreneur in the event of revocation.
Consumers bear the return costs in the event of revocation:
In deviation from the previously applicable German legal situation, consumers will in future have to bear the return costs in the event of revocation, unless the seller has not properly informed them of the obligation to bear the costs or has agreed to bear them themselves. Currently, the return costs can only be imposed on consumers if the value of the goods does not exceed €40.00. If the return value exceeds €40.00, the entrepreneur must currently bear the return costs. This will now change.
However, in the future, when returning goods that cannot be sent by post (forwarded goods), the Internet trader himself must provide information about the amount of the return costs in the cancellation policy. This is likely to pose considerable technical challenges for Internet retailers, as the return costs will have to be included in the cancellation policy in a quasi-dynamic manner, depending on the type of goods and delivery location.
Consumer must always return the goods:
Also favorable for Internet retailers is the fact that consumers must always return the goods themselves. Even in the case of forwarded goods, there will no longer be an obligation for the Internet retailer to have the goods collected from the customer.
New exceptions to the right of withdrawal:
It introduces new exceptions to the right of withdrawal. For example, in the future, the right of withdrawal will be excluded for goods that are not suitable for return for reasons of health protection or hygiene if their seal has been removed after delivery. There is also no right of withdrawal for goods that are delivered and that have been inseparably mixed with other goods after delivery due to their nature. The same applies if alcoholic beverages are delivered, the price of which was agreed upon at the conclusion of the purchase contract, but the delivery of which can only take place after 30 days and the current value of which depends on fluctuations on the market, over which the trader has no influence. Also in this case there is no right of withdrawal.
Right of return no longer applies:
A right of return, i.e., exercising the consumer right by merely returning the goods, will no longer apply in the future. This means that in future consumers will additionally have to expressly declare the revocation, for example using a form.
Fixed deadlines for returning the goods:
In the event of a revocation, the services received must be returned within 14 days at the latest. Thus, the consumer must return or hand over the goods to the entrepreneur within 14 days after revocation
Online entrepreneur's right of retention:
If the consumer exercises his right of withdrawal in the case of a purchase of consumer goods, the entrepreneur may refuse to repay the purchase price until he has received the goods back
has received the goods back or the consumer has provided proof that he has dispatched the goods. However, this does not apply if the entrepreneur has offered to collect the goods.
to pick up the goods.
More extensive information requirements for entrepreneurs:
Consumers benefit from extended information obligations on the part of entrepreneurs (e.g., on delivery restrictions in online commerce) and from the stipulations that no excessive charges may be levied for the use of payment methods and for calls to a customer service hotline.
Delivery date becomes mandatory information:
The specification of a delivery date becomes mandatory information. It has not yet been clarified whether a specific, binding delivery date (BSP: 24.12.) must be stated or whether a general indication (2 days) must be given.
Consumers are generally not required to pay for preset extras:
Consumers do not have to pay for paid extras if the entrepreneur has brought about the order of the extras by using pre-settings. This means that no boxes in the online store may be "pre-ticked".
Button solution:
The so-called "button solution" obliges entrepreneurs to point out the costs and other essential contractual information to consumers in Internet purchases immediately before the order is placed and in a prominent manner. If the ordering process is carried out by activating a button, this button must be clearly marked exclusively with the words "order subject to payment" or a corresponding unambiguous wording. Only after confirmation of the obligation to pay is the consumer bound by the contract. The Act to Improve Consumer Protection from Cost Traps in Electronic Commerce, which entered into force on August 1, 2012, has already transposed the button solution into national law.
In summary, it can be stated that due to the European Consumer Rights Directive and the Act Implementing the Consumer Rights Directive and Amending the Act Regulating Residential Mediation, it will be necessary to revise the shop systems and the legal texts used (cancellation policy, general terms and conditions, information texts). Since the law does not provide for any transitional periods, the new legal regulations must be complied with as of 13.06.2014.
Warning letters are to be expected immediately after the regulations come into force.
It is therefore advisable to adapt to the new legal framework promptly and to adapt all legal and information texts as well as the shop systems to the new legal situation in good time.
Our clients who have the permanent and ongoing review of their online trade carried out by our specialist lawyers will of course receive the texts adapted to the new legal situation in good time.
Please do not hesitate to contact us if you have any questions on this topic.
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law
E-mail: info@goldberg.de
