On March 23, 2023 the Berlin Regional court ruled that for cases where an online portal operator wishes to conclude multiple contracts with a single consumer, pursuant to Sec. 312 j para 4 of the German Civil Code (BGB) these contracts are only concluded if the operator fulfills its informational duties pursuant to Sec. 312 j para 3 BGB for each contractual relationship separately. According to the judgment, this requires a separate order button for each contract. The judgment is not yet final.
I. European law implemented in Germany
Sec. 312 i BGB introduced general obligations on contractors who are using the means of electronic legal transactions (“elektronischer Rechtsverkehr”) for the conclusion of contracts. The intention of this regulation is to promote consumer trust in electronic commerce. Whether the customer classifies as consumer is irrelevant within the initial scope of this regulation.
However, if e-commerce is conducted with consumers, e.g. Sec. 312 j para 3 BGB prescribes additional protective mechanisms. The design of the ordering process has to be configured in such a way that the consumers expressly confirm with their order that they are committing themselves to a payment. If the order is placed via a button the law explicitly states that the obligation is only fulfilled if the button is clearly legible and labelled exclusively with unambiguous wording that indicates that an order requiring payment is being placed (e.g. “Pay now”/ “Zahlungspflichtig bestellen”).
Both national rules are based on European law, namely the EU-consumer rights (Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council) and the e-commerce directive (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)). The e-commerce directive laid down general information requirements if a contract is concluded by electronic means. The consumer rights directive then stipulated more stringent information requirements in the case of electronic commerce specifically with consumers. The German legislator has implemented these European requirements in the standards at issue here.
II. The Decision of the Berlin Regional Court
The Berlin Regional Court had to decide a case in which the plaintiff demanded the cancellation and reversal of a premium membership concluded by the plaintiff in connection with the booking of a flight via an online portal operated by the defendant. According to the Berlin Regional Court, the defendant had used buttons during the booking process for the flight which were labelled „Continue“ („Weiter“) and „Continue with Prime for free“ („weiter mit Prime kostenlos“) plus a final button to conclude the flight booking „buy now“ („jetzt kaufen“).
The plaintiff had already been successful in the first instance. The Berlin Regional Court agreed with the previous ruling and concluded that no legally binding contract regarding the premium membership had been concluded between the two parties. This was based on the reasoning that the design of the purchase process on the website didn’t comply with the obligations as stated in Sec. 312 j para 3 BGB.
According to the judgment, the defendant would have been required to fulfill its informational duties pursuant to Sec. 312 j para 3 BGB for each contract separately as it had aimed to conclude several contracts within one purchase process. These requirements can be met only by providing a separate order button for the premium membership that in itself is compliant with Sec. 312 j para 3 BGB.
According to the court’s opinion additional information that the defendant provided in the body text to the booking process aren’t sufficient to fulfill the informational duties pursuant to Sec. 312 j para 3 BGB. Nor did it lead to any other result that the plaintiff could have terminated the membership subscription free of charge within a short-term trial period. For the sake of effective protection of consumer rights, contingent payment obligations need to be treated as if the obligation incurred on a final basis.
III. What should operators of online portal do now?
Online portal operators should review their legal conformity paying particular attention to this recent verdict. Otherwise, they risk that consumers in reference to the Regional Court’s ruling, will invoke the invalidity of any contracts if the purchase process does not comply with the requirements as stated above. The same risk applies to consumer contracts already concluded in the past, according to the ruling.
This risk isn’t limited to business in Germany only or to contracts with German customers as the legal provisions underlying the judgment are based on European directives that have been implemented into national law in identical or similar manner in all other countries of the European union. Therefore, a look should be taken at all online portals operating within EU perimeter.
