Reference to consumer dispute resolution platform must be included in the general terms and conditions on websites

even if there is no possibility to place an order

from
Dr. jur. Dirk Lindloff
Lawyer
Specialist lawyer for intellectual property law
Specialist lawyer for information technology law

Give me a call: 0261 - 404 99 45
E-Mail:

In recent years, we have repeatedly reported on the obligations that have been in force since January 9, 2016 to provide information on the European dispute resolution platform (so-called OS platform) and consumer dispute resolution. Errors in this mandatory information often result in warnings and unfortunately several clients have already had to pay contractual penalties because they were caught making further errors after issuing a cease-and-desist declaration , which we did not advise on. In particular, eBay's technology seems to be faulty, because apparently the link has simply disappeared from time to time, as several clients have already reported to us.

Those who are not yet familiar with this topic will be particularly interested in our basic article on the information requirements for alternative dispute resolution for online shops from 09.01.2016 as well as the follow-up article due to the additional regulations of the German legislator that came into force about a year later.

Now the next wave of warnings is looming, because according to the judgment of the European Court of Justice (ECJ) of June 25, 2020, the mandatory information under German law must be included in the general terms and conditions if a company's general terms and conditions are available on its website. In particular, it should be noted that

This also applies even if no contracts are concluded via the website at all.
Moreover, this also applies if the mandatory information is already available in the imprint.

In the lower courts, the Düsseldorf District Court had still taken the view that the terms and conditions would not be used if no contract could be concluded on the website. The Higher Regional Court of Düsseldorf was uncertain and, because the German Consumer Dispute Settlement Act is based on the European Directive 2013/11, referred the question to the ECJ.

The ECJ initially based its judgment on the wording, which states that the mandatory information must be included "in" the terms and conditions. Moreover, the ECJ emphasized the protective goal of consumer protection. The consumer should be able to obtain legal protection quickly and easily. If one now imagines that the terms and conditions on the website and the terms and conditions subsequently included in the contract concluded by other means should not differ, it follows that the mandatory information must also be included in the terms and conditions published on the website.

On this basis, the ECJ ruled definitively:

Article 13 (1) and (2) of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No. 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) is to be interpreted as meaning that a trader who makes the general terms and conditions for sales or service contracts available on its website butdoes not conclude any contracts with consumers via this website, must state in these General Terms and Conditions the information on the body or bodies for alternative dispute resolution by which it is covered, provided that it is obliged or obliged to involve this body or these bodies for the resolution of disputes with consumers. It is not sufficient for the trader to provide the information in other documents accessible on the website or under other tabs on the website, or to provide it to the consumer in a separate document when concluding the contract to which the general terms and conditions apply.

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.