Many online shop operators want to sell their products exclusively to entrepreneurs for various reasons. Consequently, they want to exclude consumers. It has been largely clarified in case law and literature that the restriction of an internet offer - and thus also of an online shop - to entrepreneurs is possible in principle.
The question is always - how?
Numerous court decisions have already dealt with the question of how an online shop - for entrepreneurs only - must be designed in order to constitute an effective restriction to entrepreneurs(e.g. OLG Hamm, judgement of 28.02.2008, Ref. 4 U 196/07; OLG Munich, decision of 02.09.2009, ref. 6 W 2070/09; BGH, decision of 31.03.2010, ref.: I ZR 34/08; BGH, decision of 29.04.2010, ref. I ZR 99/08; OLG Hamm, decision of 20.09.2011, ref. I-4 U 73/11; LG Berlin, decision of 9.2.2016, ref.: 102 O 3/16).
The Higher Regional Court of Hamm(Oberlandesgericht Hamm, judgement of 16.11.2016 - Ref.: 12 U 52/16) now had to decide on a case in which the defendant offered paid access to a database with over 20,000 recipes on its website. The defendant in this case also wanted to limit its offer to entrepreneurs and exclude consumers. The restriction was carried out in such a way that on all sub-pages of its website, under the headings "Information" and "Notes", it reproduced a text which was intended to clarify the restriction of the offer to entrepreneurs.
The text in each case read:
"The use of the offer is exclusively permitted for companies, tradesmen, associations, craft enterprises, authorities or self-employed freelancers within the meaning of § 14 BGB (German Civil Code). By pressing the button "Register now" you will incur costs of 238.80 Eur plus VAT per year (12 months at 19.90 Euro each) for a contract period of 2 years."
On the subpage "*Internet address*/register", users could register by providing their contact details. There were text fields to be filled in for title, first name, surname, company, street and house number, postcode and town, country and e-mail address, whereby all details, with the exception of the specification of a company, were mandatory details, without which the registration process could not be completed.
Furthermore, above the button "Register" there was a selection with the text "I accept the General Terms and Conditions and expressly confirm my commercial user status". If the user did not tick this box, the following message was displayed: "Please confirm the GTCs". In § 1 of the GTCs, the conclusion of the contract was then reserved exclusively for entrepreneurs and consumers were excluded from use.
In the first instance, the Regional Court of Dortmund(LG Dortmund, judgement of 23.02.2016 - 25 O 139/15) ruled against the defendant because its website violated the consumer protection provisions of § 312j BGB. The required clear and comprehensible information about the existence and conditions of a right of withdrawal was missing. There was also a lack of a button confirming the order process, which was clearly legible and labelled with nothing other than the words "order subject to payment" or a corresponding unambiguous wording. The defendant had not effectively restricted its internet offer to entrepreneurs and freelancers. This was because the information obligations associated with consumer contracts only did not apply if the provider only concluded contracts with other companies or if at least an intention to contract only with companies was clearly evident from the offer. The notices used by the defendant did not meet these requirements. In the opinion of the Dortmund Regional Court, they were easy for consumers to overlook due to the specific design of the offer page and were thus not sufficiently transparent and clear.
The defendant appealed against this decision to the Higher Regional Court of Hamm. However, the OLG Hamm confirmed the decision of the Regional Court of Dortmund and dismissed the appeal.
In its reasoning, the OLG Hamm stated that although a restriction of the internet offer to traders/entrepreneurs is possible due to the principle of private autonomy, it is necessary that this limitation of the offer is expressed clearly and transparently and cannot be overlooked or misunderstood by an average recipient.
In the opinion of the OLG Hamm, this requires not only clear indications in a suitable place but also that the exclusion of contracts with consumers is ensured to a considerable extent(OLG Hamm MMR 2012, 596, para. 31; OLGR Hamm 2008, 673, para. 31 f.; NJW-RR 2002, 1634 f.). Furthermore, it is required that the concluded legal transaction can actually be assigned to the independent purpose of the contracting party; if the stated trade and the type and quantity of the object of sale do not have a clear relation to each other, a consumer transaction is to be assumed in case of doubt(cf. Hönninger in jurisPK-BGB, 7th ed. 2014, § 355 marginal no. 12).
The court did not consider the corresponding instructions of the defendant in the case to be decided to be sufficient.
In the opinion of the OLG Hamm, neither a sufficiently clear and transparent restriction of the offer nor a sufficiently secure exclusion of consumer transactions by the defendants' notices could be established.
The restrictions under "Information" and "Notes" were located at the edge of the page, were not highlighted and only visible by scrolling, thus relatively easy to overlook.
On the registration page, the restriction to entrepreneurs was highlighted in bold type, but the eye-catcher was rather the registration area, which was even highlighted in colour. An average user would not readily understand from this notice that a consumer is prohibited from using the service.
The checkbox for the T&Cs did indeed refer to the text "I accept the General Terms and Conditions and expressly confirm my commercial user status". However, a consumer would normally only expect the GTC to be accepted at this point. The fact that the commercial user status is also to be confirmed can therefore be overlooked - without emphasis. If the GTC are not accepted, only the indication that the GTC should be confirmed appears, whereas the "commercial user status" is not requested and does not have to be expressly confirmed. The mere indirect confirmation of acceptance of the GTC was also not sufficient because consumers did not regularly read the GTC in detail and a restriction contained therein was not to be expected without further ado.
The question that online shop operators always ask themselves in this context is how an effective restriction of the internet offer is now possible?
Unfortunately, however, the OLG Hamm did not communicate this.
According to the decision of the OLG Hamm, it is in any case to be noted that it is not sufficient to merely indicate in the general terms and conditions that an internet offer is only provided for entrepreneurs. In the opinion of the OLG Hamm, even a mere reference on each internet page is not sufficient on its own. Unfortunately, the OLG Hamm did not explicitly formulate the requirements to be met by a clear transparent restriction of an internet offer. However, some requirements for the exclusion of consumer transactions can be taken from the decision.
For example, the restriction to entrepreneurs must be highlighted in colour and bold type and be visible in a central position on each internet page as an eye-catcher - and not in the margin - without the need for scrolling. It should also be necessary to provide a notice in bold colour at the top of each internet page stating that the internet offer is exclusively directed to entrepreneurs. The registration and/or ordering process should also be completed by the user expressly accepting his commercial user status by ticking a separate confirmation box. A mere reference to general terms and conditions is not sufficient. In addition, an online shop operator should also request relevant data that only an entrepreneur can provide. This may include a VAT ID. The indication of the company name should also be a mandatory field. It may also be advisable, in order to prevent warnings under competition law, that online shop operators also fulfil the information duties required only vis-à-vis consumers in the shop as a precaution.
As the decision of the OLG Hamm shows, it is difficult to effectively restrict an online offer to entrepreneurs. Therefore, all entrepreneurs who want to restrict their internet offer to certain groups of persons are strongly advised to contact specialised lawyers regarding the concrete implementation of the restriction, who can advise them on the implementation of a restriction of their online offer.
The undersigned will be happy to answer any questions you may have on this subject.
Goldberg - Lawyers 2017
E-mail: info@goldberg.de
