As of February 1, 2017, businesses must fulfill additional information obligations.
Since January 9, 2016, commercial online retailers have been required to inform consumers in their online shops and on sales portals such as eBay and Amazon about the OS platform (European ODR platform) with a clickable link. According to many courts, a missing link to the European ODR platform constitutes a violation of competition law. In this context, we also explicitly point out once again that the link to the OS platform must not only be visible but also directly clickable (e.g., Higher Regional Court of Munich, judgment of September 22, 2016, file no. 29 U 2498/16; Higher Regional Court of Koblenz, judgment of January 25, 2017 – file no.: 9 W 426/16). We therefore ask you to ensure this. We consider the decision of the Higher Regional Court of Dresden (judgment of January 17, 2017 – file no.: 14 U 1462/16), according to which this linking is not to be carried out by individual retailers on sales portals such as eBay and Amazon, to be legally flawed.
On February 1, 2017, Sections 36 and 37 of the Consumer Dispute Resolution Act (VSBG) entered into force. As a result, online retailers now have further information obligations towards consumers.
Since February 1, 2017, businesses must inform consumers on their website / in their online shop / on sales portals and in their General Terms and Conditions (online and offline) in an easily accessible, clear, and understandable manner about,
1. the extent to which they are willing or obliged to participate in a dispute resolution procedure before a consumer arbitration board, and
2. the consumer arbitration board responsible for the consumer in each case, if they have committed to participating in a dispute resolution procedure before a consumer arbitration board or are legally obliged to do so.
Section 36 (General Information Obligation) of the Act on Alternative Dispute Resolution in Consumer Matters (Consumer Dispute Resolution Act – VSBG) states:
(1) A business that operates a website or uses General Terms and Conditions must provide consumers with easily accessible, clear, and understandable information
1. informing them to what extent it is willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board, and
2. pointing out the competent consumer arbitration board if the business has committed to participate in dispute resolution proceedings before a consumer arbitration board or if it is legally obliged to participate; the notice must include the address and website of the consumer arbitration board, as well as a declaration by the business to participate in dispute resolution proceedings before this consumer arbitration board.
(2) The information pursuant to paragraph 1 must
1. appear on the business's website if the business maintains a website,
2. be provided together with its General Terms and Conditions if the business uses General Terms and Conditions.
(3) A business that employed ten or fewer persons on December 31 of the preceding year is exempt from the information obligation under paragraph 1 number 1.
Currently, no legal regulations oblige a commercial retailer to participate in dispute resolution proceedings. However, every retailer may voluntarily participate in out-of-court dispute resolution.
All commercial retailers are generally obliged to fulfill the information obligations outlined above pursuant to § 36 para. 1 no. 1 VSBG. An exception exists pursuant to § 36 para. 3 VSBG only for companies that employed ten or fewer persons on December 31 of the respective preceding year. This aims to privilege smaller companies. It should be noted that the number of employees is counted only "per capita". The scope of employment (e.g., part-time employees, marginally employed persons) is not taken into account.
In this context, we also expressly point out that the exemption for companies with 10 or fewer employees on December 31 of the respective preceding year only relieves them from fulfilling the information obligation pursuant to § 36 para. 1 no. 1 VSBG.
For our clients who have their General Terms and Conditions for their online shops, sales offers on eBay, Amazon, and other sales portals updated and monitored by our firm, we have already provided the necessary texts.
We also clarify that the aforementioned information must be made available to consumers even within General Terms and Conditions outside the internet!
The information obligations pursuant to § 37 VSBG, also newly applicable since February 1, 2017, also apply to all commercial retailers, regardless of the number of persons employed and also outside the internet.
Pursuant to § 37 para. 1 VSBG, commercial retailers have been further obliged since February 1, 2017, to inform a consumer, after a dispute arises, about the competent consumer arbitration board, including its name, address, and website. This information must be communicated to the consumer in text form, e.g., via email, pursuant to § 37 para. 2 VSBG.
§ 37 (Information after the dispute arises) VSBG states:
(1) The business must inform the consumer about a competent consumer arbitration board, stating its address and website, if the dispute regarding a consumer contract could not be resolved by the business and the consumer. The business must also state whether it is willing or obliged to participate in dispute resolution proceedings before this consumer arbitration board. If the business is willing or obliged to participate in dispute resolution proceedings before one or more consumer arbitration boards, it must specify this board or these boards.
(2) The notice must be provided in text form.
The regulation of § 37 VSBG means for you as a retailer that, from February 1, 2017, in disputes with customers who are consumers and with whom you cannot resolve a dispute yourself, you must inform these customers in text form about a consumer arbitration board competent for the customer, stating its name, address, and website.
We therefore ask you to implement the information obligations outlined above without delay.
Please do not hesitate to contact us with any questions.
