Failure to Enable Storage of General Terms and Conditions in Online Shop Represents an Infringement of Unfair Trade and Competition Law
Not least as a result of the COVID-19 pandemic, the sale of goods via online stores is currently experiencing a tremendous upswing. While this was previously mainly the domain of large mail order companies, more and more small and medium-sized enterprises are now expanding their sales channels to the Internet.
However, various legal requirements must be observed, especially with regard to the information obligations to be provided to customers:
For example, Section 312i No. 4 of the German Civil Code (BGB) stipulates that if an entrepreneur uses telemedia for the purpose of concluding a contract for the delivery of goods or the provision of services, he must provide his customers with the option of retrieving the terms and conditions of the contract, including the General Terms and Conditions, upon conclusion of the contract and saving them in reproducible form.
Facts
In this context, the Frankfurt Higher Regional Court (OLG) recently ruled (OLG Frankfurt, judgment of 11.11.2021 file reference 2 U 81/21) that a breach of the duty to inform arising from Section 312i (1) No. 4 of the German Civil Code (BGB) may constitute a violation of competition law.
In particular, the court specified the requirement for the “possibility of storage in reproducible form”.
The background to the decision was that an organic farmer who, among other things, offers mueslis for ordering and collection via a website (applicant) had issued a warning to the operator of an online store via which it sold muesli mixtures (defendant) for breaches of various statutory information obligations – including the aforementioned obligation under Section 312i (1) No. 4 of the German Civil Code (BGB).
The Frankfurt Higher Regional Court affirmed a violation of unfair trade and competition law.
As a competitor, the applicant as such was entitled to issue a warning notice.
The OLG also assumed that the defendant had breached its duty to inform under Section 312i No. 4 of the German Civil Code (BGB).
The defendant had argued that, on the one hand, it would always send its customers the contractual terms and conditions together with the order confirmation and, on the other hand, had provided them with the option of “accessing” the general terms and conditions by means of a link; this made it possible for a customer to save the general terms and conditions by means of the save function of its browser.
However, this was not sufficient for the OLG: The link to the general terms and conditions only lead to an access option to the terms and conditions of the contract. According to the standard of § 312i No. 4 BGB, the seller is obliged to provide the customer with a concrete storage option. This obligation is not fulfilled if the customer has to initiate the storage himself via his browser.
According to the OLG, this infringement is relevant under competition law because the standard represents an information obligation which was implemented in the German Civil Code by transposing the European Consumer Rights Directive. Pursuant to Section 5a (4) UWG, this duty to inform therefore constitutes “essential information” within the meaning of Section 5a (2) UWG, the withholding of which automatically leads to unfair conduct on the part of the entrepreneur and competitors can be warned accordingly.
Opinion
The OLG here provides at least partial clarity on the interpretation of the obligation of an entrepreneur in electronic commerce resulting from Section 312i (1) no. 4 BGB to enable the retrieval and storage of contractual provisions and general terms and conditions.
On the one hand, this clarifies once again that in e-commerce the information requirements go beyond the principle of Section 305 (2) no. 2 of the German Civil Code (BGB), according to which contracting parties only have to be given the opportunity to take note of the content of the general terms and conditions. Also, the OLG clarifies that the storage option to be created for the customer must be as barrier-free as possible, i.e. it must not cause the customer any additional inconvenience.
However, it is not possible to say with final certainty to what extent the OLG thus also contradicts the widely held view in legal literature that the sending of the corresponding contractual terms and conditions “within a reasonable period of time” (e.g. together with the acceptance as an e-mail) is sufficient for the fulfillment of this obligation (e.g. Wendehorst in Münchener Kommentar BGB § 312i, margin no. 104, 105): The OLG did not elaborate on the defendant’s submission that its customers had also received the contractual terms and conditions with the order confirmation. Precisely because the contract only comes into effect with the acceptance in the form of the order confirmation, and the standard of § 312i (1) No. 4 BGB precisely requires the storage option “at the conclusion of the contract”, more detailed explanations would have been helpful here.
Against the background of this decision, entrepreneurs who offer goods or services to end consumers via the Internet are nevertheless advised to always provide their customers with an easily accessible option for saving the contractual provisions and general terms and conditions – for example, by providing a link to a PDF document – when placing an order, in order to avoid the risk of a warning notice from competitors.
Authors: Thomas Hert, Florian Eckert