The Federal Court of Justice (judgment of September 22, 2020, file ref. XI ZR 162/19) ruled in a proceeding that the information required by Section 36 of the Consumer Dispute Resolution Act (VSBG) must be included in the General Terms and Conditions (GTC).
Must the information required by Section 36 VSBG be included in the GTC?
The defendant (a bank) maintains a website where, among other things, it publishes General Terms and Conditions. These GTC did not contain the information required by Section 36 VSBG (willingness or obligation to participate in a dispute resolution procedure). The information according to Section 36 VSBG was only present in the legal notice of the website and in a separate document.
Following an unsuccessful cease and desist letter from the Federation of German Consumer Organisations, the plaintiff was ordered to cease and desist in both the first and second instances. The Federal Court of Justice upheld the judgment of the Berlin Regional Court.
Is a reference to Section 36 VSBG in the legal notice sufficient?
According to the Federal Court of Justice, the information required by Section 36 VSBG must be included in the GTC. A reference in the legal notice and/or in a separate document is not sufficient.
Information Obligation Regarding the Alternative Resolution of Consumer Disputes
Section 36 VSBG represents the German legislator's implementation of Directive 2013/11/EU, which, in Article 13 Paragraph 2, regulates the information obligation concerning the alternative resolution of consumer law disputes.
Why is the reference to Section 36 VSBG in the legal notice not sufficient?
The Federal Court of Justice clarified that the obligation to provide the information required by Section 36 VSBG in the legal notice of a website already stems from the explicit provision in Section 36 Paragraph 2 No. 1 VSBG. This provision must be met in addition to the requirement in Section 36 Paragraph 2 No. 2 VSBG (inclusion in GTC).
The obligation under Section 36 Paragraph 2 No. 2 VSBG must be interpreted in light of Article 13 Paragraph 2 of Directive 2013/11/EU. This article clarifies that the required information must be provided 'in' the GTC. The Federal Court of Justice also stated that it is irrelevant whether a website is used for concluding consumer contracts. According to the intent of the German legislator, the information obligations under Section 36 VSBG arise even prior to the conclusion of a contract, and thus independently of whether a contract is subsequently formed.
What obligations arise for website operators from Section 36 VSBG?
Although the topic of information required by Section 36 VSBG is well-established, it continues to present potential pitfalls.
Who is subject to the obligations under Section 36 VSBG?
Answer: All entities that maintain a website or utilize GTC. With respect to GTC, it is irrelevant whether users can conclude a contract via the website. As soon as you employ GTC on your website or offline (e.g., in catalogs, brochures), the information mandated by Section 36 VSBG must be included in the GTC.
Have you reviewed your GTC?
If you have not already done so, you should urgently review your GTC or have them reviewed. Violations of the requirements under Section 36 VSBG are easily detectable by warning associations such as the Federation of German Consumer Organisations or the IDO Association and lead to undesirable consequences. Similar to the bank in the proceedings before the Federal Court of Justice, you cannot claim an oversight or similar. You can even inadvertently commit violations of the information obligation under Section 36 VSBG!
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GoldbergUllrich Attorneys at Law 2020
Julius Oberste-Dommes LL.M. (Information Law)
Attorney-at-Law and
Specialist Attorney for Information Technology Law
