Since 01.02.2017, entrepreneurs have had to comply with additional information obligations.
Since 9 January 2016, commercial online traders have had to provide consumers with a clickable link to the ODR platform (European ODR arbitration platform) in their online shops and on sales portals such as eBay and Amazon. In the opinion of many courts, a missing link to the European ODR arbitration platform constitutes a violation of competition law. In this context, we also expressly point out once again that the link to the ODR platform must not only be visible, but also directly clickable (inter alia OLG Munich, judgement of 22.9.2016, file no. 29 U 2498/16; OLG Koblenz, judgement of. 25.01.2017 - Ref.: 9 W 426/16). We therefore ask you to ensure that this is the case. We consider the decision of the OLG Dresden(judgement of 17.01.2017 - ref.: 14 U 1462/16), according to which on sales portals such as eBay and Amazon this linking does not have to be done by the individual traders, to be legally incorrect.
Sections 36 and 37 of the Consumer Dispute Settlement Act (VSBG) came into force on 1 February 2017. This means that online traders are now subject to more extensive information obligations vis-à-vis consumers.
Since 01.02.2017, entrepreneurs have to inform consumers about this on their website / in their online shop / on sales portals and in their T&Cs (online and offline) in an easily accessible, clear and understandable way,
1. to what extent they are willing or obliged to participate in a dispute resolution procedure before a consumer arbitration board and
2. about the consumer arbitration board responsible for the consumer in each case if they have undertaken to participate in a dispute resolution procedure before a consumer arbitration board or if they are legally obliged to do so.
§ Section 36 (General Duty to Inform) Act on Alternative Dispute Resolution in Consumer Matters (Consumer Dispute Resolution Act - VSBG) reads:
(1) A trader who maintains a website or uses general terms and conditions shall provide the consumer with easily accessible, clear and understandable
1. inform the consumer to what extent he is willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board and
2. refer to the competent consumer arbitration board if the trader has undertaken to participate in a dispute resolution procedure before a consumer arbitration board or if he is obliged to participate on the basis of legal provisions; the reference must contain information on the address and website of the consumer arbitration board as well as a declaration by the trader to participate in a dispute resolution procedure before this consumer arbitration board.
(2. The information referred to in paragraph 1 shall
1. appear on the Entrepreneur's website if the Entrepreneur maintains a website,
2. be given together with his general terms and conditions if the trader uses general terms and conditions.
(3) An entrepreneur who employed ten or fewer persons on 31 December of the preceding year shall be exempt from the obligation to provide information under subsection (1)(1).
There are currently no legal regulations that oblige a commercial retailer to participate in the dispute resolution procedure. However, it is possible for every trader to voluntarily participate in the out-of-court dispute resolution.
In general, all commercial traders are obliged to comply with the information obligations set out above pursuant to Section 36 (1) No. 1 VSBG. Pursuant to Section 36 (3) VSBG, the only exception is for companies that had only ten or fewer employees as of 31 December of the respective previous year. This is intended to privilege smaller enterprises. It should be noted that the number of employees is only counted "per capita". The extent of employment (e.g. part-time workers, marginally employed) is not taken into account.
In this context, we would also like to expressly point out that the privileged status of companies with 10 or fewer employees as of 31 December of the respective previous year only exempts companies from providing the information obligation pursuant to Section 36 (1) no. 1 VSBG.
For our clients who have their T&Cs for their online shops, sales offers on eBay, Amazon and on other sales portals updated and monitored by our firm, we have already provided the necessary texts.
We also point out by way of clarification that the aforementioned information must also be provided to consumers within general terms and conditions outside the Internet!
The information obligations under Section 37 VSBG, which have also been newly applicable since 01.02.2017, also apply to all commercial traders, irrespective of the number of persons employed and also outside the internet.
Pursuant to Section 37 (1) VSBG, commercial traders have been further obliged since 01.02.2017 to inform a consumer of the competent consumer arbitration board with name, address and website after a dispute has arisen. This information must be provided to the consumer in text form, e.g. by e-mail, in accordance with Section 37 (2) VSBG.
§ Section 37 (Information after the dispute has arisen) VSGB reads:
(1) The trader shall inform the consumer of a consumer arbitration board that is competent for him, indicating its address and website, if the dispute concerning a consumer contract could not be settled by the trader and the consumer. The trader shall at the same time indicate whether he is willing or obliged to participate in a dispute resolution procedure at this consumer arbitration board. If the trader is willing or obliged to participate in the dispute resolution procedure of one or more consumer arbitration bodies, he shall indicate this body or these bodies.
(2) The notice must be given in text form.
The regulation of § 37 VSGB means for you as a trader that from 01.02.2017, in the event of disputes with customers who are consumers and with whom you cannot clarify and resolve a dispute yourself, you must inform these customers in text form of a consumer arbitration board responsible for the customer, stating the name, address and website.
We therefore ask you to implement the information obligations set out above without delay.
Please do not hesitate to contact us if you have any questions.
