Information pursuant to the VSBG (also) belongs in GTCs

The Federal Court of Justice (ruling of 22.09.2020, ref. XI ZR 162/19) found in a case that the information pursuant to Section 36 of the Consumer Dispute Resolution Act (VSBG) must be included in GTCs.

Does the information according to § 36 VSBG have to be included in GTCs?

The defendant (a bank) maintains a website on which it publishes, among other things, general terms and conditions. These general terms and conditions do not contain any information according to § 36 VSBG (willingness or obligation to participate in a dispute resolution procedure). Only in the imprint of the website and in a separate document was the information according to § 36 VSBG available.

Following the unsuccessful warning of the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.), the plaintiff was ordered to cease and desist in the first and second instance. The Federal Supreme Court confirmed the judgement of the Berlin Regional Court.

Is a reference to § 36 VSBG in the imprint sufficient?

According to the Federal Supreme Court, the information pursuant to § 36 VSBG must be included in the GTC. A reference in the imprint and/or in a separate document is not sufficient.

Duty to provide information on alternative dispute resolution for consumer disputes

§ Section 36 VSBG is the German legislator's implementation of Directive 2013/11/EU, Art. 13(2) of which regulates the obligation to provide information on alternative dispute resolution for consumer disputes.

Why is a reference to § 36 VSBG in the imprint not sufficient?

The Federal Court of Justice made it clear that the obligation to provide information pursuant to Section 36 VSBG in the imprint of a website already results from the express provision in Section 36 (2) no. 1 VSBG. This provision must be complied with in addition to the provision in § 36 (2) no. 2 VSBG (information in general terms and conditions).

The obligation under Section 36(2) No. 2 VSBG must be understood in the light of Article 13(2) of Directive 2013/11/EU. There it is made clear that the necessary information must be provided "in" the general terms and conditions. According to the Federal Supreme Court, it also does not matter whether an internet site is used to conclude consumer contracts. According to the intention of the German legislator, the information obligations under Section 36 VSBG already exist in the run-up to the conclusion of a contract and thus irrespective of whether a contract is concluded later.

What obligations do website operators have under Section 36 VSBG?

Although the topic of information according to § 36 VSBG is "old hat", this topic still holds pitfalls.

Who is subject to the obligations under § 36 VSBG?

Answer: Anyone who maintains a website or uses GTCs. With regard to the GTC, it does not matter whether users can conclude a contract via the website. As soon as you use general terms and conditions on your website or offline (e.g. in catalogues, brochures), the information according to § 36 VSBG must be available in the general terms and conditions.

Have you checked your T&Cs?

If you have not already done so, you should urgently check your GTC or have them checked. Violations of the requirements according to § 36 VSBG are easy for warning parties such as the Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband e.V.) or the IDO Association (IDO Verband e.V.) to discover and lead to unpleasant consequences. Similar to the bank in the proceedings before the Federal Supreme Court, you cannot refer to an oversight or similar. You can also inadvertently commit violations of the duty to inform according to § 36 VSBG!

We are happy to provide advice in the entire area of competition law .

GoldbergUllrich Lawyers 2020

Julius Oberste-Dommes LL.M. (Information Law)

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Specialist lawyer for information technology law

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