New distance selling law for consumers and businesses

1. New Legislation

Regarding 5: Chargeable service numbers impermissible for 'contractual matters'

For questions or declarations (including revocations!) pertaining to a concluded contract between a consumer and an entrepreneur, a chargeable value-added service number may no longer be provided if a call to it costs more than the mere use of the telecommunications service. Consequently, only phone numbers for which the maximum charge is the standard rate for domestic landline or mobile connections will be permissible. Chargeable value-added service numbers remain permissible only for general inquiries not related to a contract concluded with the entrepreneur, such as questions about the product range or the functionality of individual products.

Technically, it must be ensured that callers with contractual inquiries are always connected free of charge. While technically feasible, this is cost and personnel intensive. In any case, providing a value-added service number as the contact number in the revocation instructions is impermissible. In the future, a declaration of revocation can also be made by telephone and always relates to a concluded contract between the consumer and the entrepreneur.

⇒ Amendments to the General Terms and Conditions (GTC) required 

⇒ Technical modification to the ordering system

Regarding 6: New and expanded pre-contractual information obligations for entrepreneurs

Beyond the existing information obligations (e.g., imprint, contract conclusion, right of revocation), further mandatory information must now be provided. In the event of a violation, legal disadvantages and warnings (Abmahnungen) are to be expected.

Regarding 6 a) Information on the deadline by which the entrepreneur must deliver the goods or render the service

The entrepreneur must provide information on the deadline by which they will deliver the goods or render the service. The legal wording is unclear! It is currently unresolved whether a specific delivery date or a maximum delivery period must be stated. The prevailing view is that a delivery period should suffice. A precise delivery date usually cannot be specified before an order is placed. We explicitly point out that this regulation must first be interpreted by case law. This is currently unpredictable. Currently, the interpretation of a delivery period seems more probable than that of a specific delivery date.

Significant problems also arise when specifying delivery dates:

aa) Delivery time indications in the webshop must mandatorily correspond with the specified delivery period. For instance, offers stating 'immediately available' or 'delivery time approx. 2 – 3 working days' would be impermissible if a delivery period of up to seven days is reserved within the delivery timeframe.

bb) Exceeding the stated delivery period constitutes default by the retailer, with all legal consequences.

cc) Delivery periods must be precisely calculated and communicated, taking into account the payment method (e.g., prepayment, invoice, credit card, etc.) and Sundays and public holidays. The calculation of the maximum delivery date must be easily possible for the consumer based solely on factors known to them. For example, the start of the period may not be stated as: 'The delivery period begins upon receipt of payment in our account.' The consumer does not know this date.

Examples of wording:

Attention: These formulations must be individually adapted to the specific goods, shop, company, and delivery methods!

⇒ Amendments to the General Terms and Conditions (GTC) required 

⇒ Technical modification to the ordering system

Regarding 6. b) Information on the existence of a statutory liability for defects concerning goods

In the future, the entrepreneur must inform about the existence of a statutory liability for defects for the goods before concluding the contract.

Examples:

aa) without changes: “Information on liability for defects: The statutory provisions on liability for defects apply.”

bb) with changes via GTC: “Information on liability for defects: Liability for defects is governed by Clause XXX of the GTC (Link).” 

⇒ Amendments to the General Terms and Conditions (GTC) required 

⇒ Technical modification to the ordering system

Examples of placement:

a) The notice regarding liability for defects with each item (controversial) or

b) The notice regarding liability for defects centrally – for example, under GTC in the footer “Information on liability for defects: Liability for defects is governed by Clause XXX of the GTC (Link to the relevant section in the GTC).” or

c) “Information on liability for defects: If you are a consumer, the statutory provisions on liability for defects apply. For entrepreneurs, our GTC apply.” (LINK)

Regarding 6. c) Information on the existence and conditions of customer service, customer services, and guarantees

Before concluding a contract, the consumer must be specifically informed about the existence and conditions of customer service, customer services, and guarantees. Notices such as “5-year manufacturer's warranty”, “10 years against rust-through” or similar, without explanatory additions, are inadmissible and anti-competitive.

Every additional “guarantee” for an item must include:

• a reference to the consumer's statutory rights and that these rights are not restricted by the guarantee, and
• the content of the guarantee and all essential information required for claiming the guarantee, particularly the duration and geographical scope of the guarantee protection, as well as the name and address of the guarantor.

This could be structured as follows within an online offer:

Example “5-year manufacturer's warranty* (…) *If a guarantee is indicated in the item description, your statutory rights regarding defects against us remain unaffected. The content of the guarantee and all essential information required for claiming the guarantee can be viewed here (Link to the guarantor's terms of guarantee).”

The online retailer adopts the manufacturer's guarantee as their own. They are liable for the declaration. In particular, guarantee conditions from foreign guarantors are often inadmissible under German or European law. Therefore, guarantee conditions should never be adopted without prior review.

⇒ All items with “guarantees” must be reviewed and processed accordingly. 

⇒ Amendments to the General Terms and Conditions (GTC) required 

⇒ Technical modification to the ordering system

Regarding 6. d) Information on the contract term or the conditions for terminating open-ended contracts or automatically renewing contracts

For offers aimed at establishing long-term contractual relationships (e.g., subscription contracts), explicit information must be provided from June 2014 onwards, before contract conclusion, regarding the contract term or the conditions for terminating open-ended contracts or automatically renewing contracts. This information must be provided outside of the GTC. According to previous interpretations, this notice may also be provided in a linked reference to the GTC. 

⇒ Amendments to the General Terms and Conditions (GTC) required 

⇒ Technical modification to the ordering system

Regarding 6.e) Information on the functionality of digital content, including applicable technical protection measures for such content and

Regarding 6. f) Information on restrictions to the interoperability and compatibility of digital content with hardware and software, insofar as these restrictions are known or ought to be known to the entrepreneur

Descriptions of products with “digital content” must be supplemented with corresponding detail. In particular, the hardware and software environment for product use must be precisely described. 

⇒ Technical modification to the ordering system (item description)

Regarding 6. g) Information on delivery restrictions and accepted payment methods

In the future, it must be clearly and explicitly stated at the latest at the beginning of the ordering process whether delivery restrictions exist and which payment methods are accepted. Restrictions such as “delivery to accessible curbside” must be communicated before the order is placed.

The selectable payment options must be specified before the order is placed. The previously common selection at the end of the ordering process is no longer sufficient. Centrally accessible information on payment terms should be maintained. The General Terms and Conditions (GTC) must be amended accordingly. 

⇒ Amendments to the General Terms and Conditions (GTC) required 

⇒ Technical modification to the ordering system

Regarding 6. h) Formal requirements for fulfilling information obligations

All information must be made available to the consumer in a clear and understandable manner before they submit their contractual declaration. Online shops must fully comply with this, even for orders placed via smartphones. 

⇒ Technical modification to the ordering system

Regarding 7.: Obligation to confirm a distance contract

For distance contracts, the entrepreneur will in future be obliged to provide the consumer with a confirmation of the contract, reproducing its content, within a reasonable period after the conclusion of the contract, but at the latest upon delivery of the goods or before the performance of the service begins, on a durable medium.

This new regulation must be observed particularly for telephone orders! 

⇒ Technical modification to the ordering system

Regarding 8: New right of withdrawal

The new provisions:

• As of June 13, 2014, there is only a right of withdrawal, no longer a right of return.
• The withdrawal period is uniformly 14 days.
• The consumer must explicitly declare the withdrawal. Simply returning the goods is no longer sufficient.
• A standardized withdrawal form must be provided for consumers. However, this does not necessarily have to be used for declaring the withdrawal.
• Withdrawal can also be declared by telephone.
• Received services, which applies to both the return of goods and the refund of the purchase price, must be returned/refunded no later than 14 days. For a refund of the purchase price, the retailer must use the same payment method.
• The retailer may refuse to refund the purchase price until they have received the goods back or the consumer has provided proof that they have dispatched the goods.
• The online retailer no longer bears the return shipping costs if they have previously informed about the specific return costs in the withdrawal instructions. Example: Four products are purchased. One product weighs 10 g, another 10 kg, a third 100 g but has an exceptional packaging volume. The return costs in the event of withdrawal would have to be specifically calculated and presented in the withdrawal instructions for all goods and all return combinations, including for the withdrawal of each individual product or combinations of withdrawals. Currently, even internationally active online retailers are unable to provide these instructions. Software solutions are currently unable to perform this.
• Shipping costs are to be refunded in the event of withdrawal, as before. However, this only applies to a standard delivery method (standard shipping). Additional costs for express shipping are no longer refundable.
• Compensation for value will in future be limited solely to the loss in value of the goods.
• The right of withdrawal is excluded for the delivery of sealed goods that are not suitable for return for reasons of health protection or hygiene if their seal has been removed after delivery. This exclusion is currently still unclear and should be applied very cautiously. • A right of withdrawal is excluded for the delivery of goods that, due to their nature, have been inseparably mixed with other goods after delivery. (e.g., liquefied petroleum gas or heating oil)
• The consumer is generally obliged to return the goods, even for items that cannot be sent by parcel post, unless the entrepreneur has offered to collect the goods.
• The consumer's right of withdrawal expires at the latest 12 months and 14 days after the conditions for the commencement of the period are met (regardless of whether the withdrawal instructions were proper).
• The new withdrawal instructions are no longer a uniform template; instead, the official form must be specifically adapted. Among other things, the following must be considered:
  • telephone withdrawal
  • Commencement of period
  • Total delivery
  • Partial delivery
  • Collection of goods
  • Return by consumer
  • Return costs

The form used in the respective online shop or catalogs must be specifically adapted to the individual case to avoid warnings. However, not all conceivable combinations can be explained within the scope of this information. The cancellation policy and the general terms and conditions must be adjusted in a timely manner. After June 12, 2014, the old cancellation policies may no longer be used. The use of the new texts before June 13, 2014, is impermissible.

If preparations are not yet complete, urgent action is required. 