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New Consumer Law for the online trading sector – What is actually new? What are the new information obligations? How has the right of withdrawal changed?
The German Act Implementing the EU Directive on Consumer Rights of 25 October 2011 has taken into effect on 13 June 2014.
B. WHAT IS REALLY NEW?
1. Confusing regulations
It is not really anything new that consumer rights regulations are confusing. The changes do, however, exacerbate the confusion here quite a bit: certain regulations are not applicable to certain industries (e. g., travel services, transportation, grocery deliveries, § 312 para. 2 of the Bürgerliches Gesetzbuch neu (the Civil Code New, the “BGB NEW”)). The law establishes — to an even greater extent than it did before — various standards for information obligations in the e-commerce sector in a more narrow sense: from distance sales, to formation of sales contracts outside of one’s business premises, to retail stationary (§ 312a et seq. BGB New).
2. Incorporation of retail stationary
What is really new, however, is that certain – both amended or new – regulations are now expressly applicable to the retail stationary trade (§ 312a BGB New) as well.
- paid-for services shall have to be expressly agreed to (e.g. transport, assembly services, etc.).
- consumers must have a standard free of charge payment option (already established jurisprudence for some time now). To the extent that costs for any other payment method are incurred, such costs may not exceed the costs the enterprise incurs for using the payment method.
- individual traders making contact by telephone for sales purposes must disclose (i) their identity at the beginning of the telephone call and (ii) the business nature of the call. This shall apply independent of the quite narrow conditions for the legality of such telephone calls.
- no fees over and above those for the mere use of the telecommunication service may be charged for service hotlines. Traders will, therefore, have to offer either a toll-free or local number.
3. Information obligations for the retail stationary trade
In addition to the information obligations for distance sales and for the formation of sales contracts outside one’s business premises, certain new information obligations shall now be applicable to and obligatory for retail stationary (§ 312 a para. 2 BGB New in conjunction with Article 246 para. 1 EGBGB New).
4. Certain information to become constituents of contracts
It is new that certain information obligations shall now automatically become a constituent of contracts for both distance sales contracts and sales contracts being formed outside one’s business premises (§ 312 d para. 1 BGB New).
5. Information obligations for mobile websites and smartphone apps
Information obligations are being made easier for distance sales contracts through any means of communication that has only limited presentation options (such as mobile websites or smartphone apps). What’s new? Moving forward, informing consumers of the material qualities of the goods or services, the identity of the enterprise, the total price, the existence of a right of withdrawal, the term of the contract, and the terms and conditions governing any termination of contract will be sufficient.
6. Delivery restrictions and methods of payment
What’s new for electronic business transactions? The following: traders shall — by no later than the commencement of the ordering process — have to clearly articulate whether there are any delivery restrictions and what methods of payment the trader accepts.
C. CHANGES TO THE RIGHT OF WITHDRAWAL
The changes to the right of withdrawal are even more extensive. And here is an overview:
1. No more return right
Up to now, the statutory right of withdrawal could be substituted with a so-called right of return. This right of return will no longer exist as of 13 June 2014.
2. Reforming statutory exceptions to the right of withdrawal
At present, applicable law already provides for numerous situations where consumers are not supposed to be entitled to any right of withdrawal. The changes incorporate additional new exceptions to the right of withdrawal (§ 312 g para. 2 sent. 1 BGB New) and therefore serve to implement the final catalogue set forth in the Consumer Rights Directive. What is new here is the exception for alcoholic beverage supply agreements, with prices having been agreed to as of the date the agreement had been entered into, but where (i) beverages can be supplied by no earlier than thirty (30) days of the agreement having been entered into and (ii) the current value of the beverages are dependent upon market fluctuations that the trader has no influence over.
3. Single withdrawal period
Commencing as of 13 June 2014, there shall be a single withdrawal period of fourteen (14) days throughout Europe. Germany has long had two withdrawal periods: (i) a general fourteen (14) day period and (ii) an extended period of one (1) month in the event traders did not — immediately after the formation of a contract — notify consumers that they had a right of withdrawal.
4. No more indefinite right of withdrawal
Present legislation provides for the possibility that the right of withdrawal shall be indefinite in the event that traders have not duly notified consumers of their right of withdrawal. But the new legislation provides for consumers’ right of withdrawal lapsing by no later than twelve (12) months and fourteen (14) days from receipt of goods (distance sales) or of the formation of the contract.
5. Declaration of withdrawal
Consumers shall no longer have to declare their withdrawal in written form, as has hitherto been the case (§ 355 BGB). An unambiguous declaration will suffice; there need not be any reason for the withdrawal. A withdrawal by merely returning the goods shall no longer be possible, save for where the parties have expressly agreed to this. Sending the withdrawal in due time shall be sufficient for complying with the deadline here.
6. Obligation to provide a sample withdrawal form
The new regulations provide for traders being obligated to provide consumers with a so-called sample withdrawal form for distance sales and for the formation of sales contracts outside their business premises (§ 312 d para. 1 sent. 1 BGB New in conjunction with Article 246 a § 1 para. 2 sent. 1 no. 1 EGBGB New). This shall have to be done in a way adapted to the method of distance communication used. Traders can provide consumers with the withdrawal form on their website, such that it is capable of being filled out by consumers and electronically transmitted to the online retailer. Should consumers use the sample withdrawal form provided online, then traders shall have to confirm receipt of withdrawal without undue delay using some permanent medium (in an email, say, § 356 para. 1 sent. 2 BGB New).
7. Cap on shipping/return shipping costs
The present legal situation provides for traders being obligated to reimburse consumers for the full amount of any shipping costs in the event of an effective withdrawal. The new legislation does clarify that traders have to reimburse shipping costs (§ 357 para. 2 sent. 1 BGB New), but the amount of this reimbursement is capped. Should any consumer opt for a shipping method that is more expensive than the standard shipping offered by the trader, then that consumer shall have to bear any additional costs in the event they exercise their right of withdrawal (§ 357 para. 2 sent. 2 BGB New). Another new development here is that consumers shall have to bear any return shipping costs regardless of the goods’ value. Lawmakers are, specifically, repealing the € 40.00 clause that has existed up to now.
8. Speedier settlement of withdrawals
Under the new legislation, goods must be returned within fourteen (14) days (§ 357 para. 1 BGB New) of receipt of a withdrawal notification. Furthermore, the purchase price has to be reimbursed by using the same method of payment that was used to render payment, unless otherwise agreed upon with the consumers (§ 357 para. 3 BGB New).
9. Withdrawal right
Under the new legislation, traders shall have a withdrawal right regarding refunds until such time as the goods are returned to them or, at minimum, until such time that it has been evidenced by the consumer that s/he has sent the goods (§ 357 para. 4 BGB New).
10. Compensation for value lost
In future, consumers shall have to pay compensation for value lost only if the goods have been handled in a manner that was not necessary for inspecting the quality of the goods (§ 357 para. 7 BGB New). The new legislation fully dispenses with any compensation for value lost on account of the goods having been used. It also clarifies expressly that consumers shall not have to render any compensation for value lost in the event they withdraw from digital content supply agreements.
In the confectionery industry, the following also applies: All market participants who are liable for forms of contracts or interactive websites where orders can be placed will have to use their best efforts and the greatest of care to adjust their services to the new legal situation. The e-commerce platform analyses that have already been conducted show that the “devil” is in the detail here, as is so often the case.