Background
The EU had issued a regulation for a system of alternative dispute resolution (ADR) in the EU for online purchases and online service contracts concluded with consumers, which introduced binding information requirements for online shops as of January 9, 2016. We reported on this.
This regulation required further implementation by the German legislature, in particular to create the legal framework for the national consumer dispute resolution bodies. However, the legislature has also used this opportunity to create further information requirements for all industries that conclude contracts with consumers. Therefore, the question of which information obligations will apply from February 1, 2017 now arises again, as part 2, so to speak. This is regulated in Section 36 f. of the Consumer Dispute Settlement Act (VSBG).
Almost all companies affected
The law applies to all companies that
- maintain a website or
- use general terms and conditions
and conclude contracts with consumers.
It is therefore no longer relevant whether online business is conducted. Even the mere presentation of a company via a website now triggers the information requirements. And even the few companies that do not operate a website are affected if they use terms and conditions. Please note: Terms and conditions may already be present if order forms with any short legal terms and conditions are used. The term "terms and conditions" is very broad and does not require a DIN A4 page full of legal regulations in the form of structured paragraphs or similar. It could also be a rental agreement form, for example.
New information requirements on websites and in general terms and conditions
The obligations introduced on January 9, 2016 had merely created the obligation to provide information regarding the EU's online dispute resolution platform. As long as you did not participate in an AS system, you did not have to provide any information about this.
This will change as of February 1, 2017. Every business owner will then have to indicate the extent to which they are willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board.
Even if the company does not want to participate in a consumer dispute resolution procedure and is not obliged to do so, it must state this on the website and in the terms and conditions. With regard to the terms and conditions, there is still the option of providing the information "together" with the terms and conditions, e.g. if you do not want to reprint the terms and conditions because of the new obligations, you could use an enclosure. Such a note could read, for example:
"We are not willing and obliged to participate in dispute resolution proceedings before a consumer arbitration board."
The information requirements go even further if the company has agreed to participate in a dispute resolution procedure before a consumer arbitration board or if it is obliged to participate by law. In this case, the company must also provide the address and website of the consumer arbitration board. The Federal Ministry of Justice has published a list of approved consumer dispute resolution bodies (as of link check 29.11.2016) and an overview can be found on the website of the European Consumer Centre Germany . This information on the website or in the terms and conditions may appear as follows:
"We are obliged to participate in dispute resolution proceedings before the consumer arbitration board XYZ, address, website."
Good news for small businesses: Those who employed fewer than 11 people on December 31 of the previous year are not required to fulfill the obligations on the website and in the terms and conditions.
New information requirements after a dispute arises
While it is relatively easy to make blanket changes to websites and terms and conditions, and the business only has to deal with the issue again if the status of their readiness or obligation to use a consumer arbitration board changes, the next new information requirement must be taken into account at all times. In addition, it also applies to small businesses.
This additional information requirement is triggered if a dispute arises between the entrepreneur and consumer regarding the consumer contract and the dispute cannot be resolved.
In this case, the entrepreneur has to inform the consumer again if necessary. However, the information requirement goes a little further at this point. Every entrepreneur is now obliged to name a consumer arbitration board that is responsible for them, along with its address and website. If, for example, the Lawyers' Conciliation Board is only a voluntary consumer conciliation board for Lawyers, this body does not have to be named on the website and in the terms and conditions. However, if a dispute arises that cannot be settled, then this conciliation board must be disclosed to the consumer, even if it is also communicated that the company is not willing to participate in a dispute resolution procedure.
As with the website or the terms and conditions, there is again an obligation to state whether one is willing or obliged to participate in such a dispute resolution procedure. At this point, the law then clarifies for the first time that if there is a willingness or obligation to participate with regard to several consumer arbitration boards, all of them must be named.
This information must be provided in writing. If, for example, a hotline cannot reach an agreement with the consumer, the hotline will have to send the consumer an email with the required information after the phone call.
Participation requirements
The above-mentioned obligations differ in part depending on whether there is a willingness or obligation to participate in dispute resolution proceedings before a consumer arbitration board.
An obligation may initially arise from statutory provisions, as is the case for some economic sectors (see Section 111b of the Energy Industry Act for energy suppliers).
However, an obligation based on association membership, general obligations in contracts (e.g. certification systems, i.e. seals of approval on the websites of online shops that are intended to create trust with customers) or even individual contractual obligations, among other things, are also conceivable.
legal consequences of violating the obligations
The Consumer Dispute Resolution Act does not provide for any sanctions if the obligations are violated. However, the information obligations will have to be regarded as consumer-protecting standards in the sense of competition law, so that warnings from competitors, associations, consumer advice centers and similar authorized bodies are a distinct possibility. These cease-and-desist letters usually demand that the accused cease and desist and pay the legal fees of the claimant.
Further information can also be found in a brochure published by the Federal Ministry of Justice or you can contact us for a case-by-case review.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.