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BGH: Willingness to arbitrate does not trigger duty to notify
The question of how and in what way the EU’s dispute resolution platform must be referred to is actually a perennial issue in warning letters. Some may think: Don’t we have bigger problems? An example of this in this article.
Well, since the obligation to include the link, there have been numerous court decisions. Recently, even decisions of the BGH have been added. Recently, the issue was whether it is problematic for an online merchant to indicate that it would be willing to participate in dispute resolution from time to time(see this article).
A rather similar complex of disputes has now reached the BGH.
The dealer had the following passage in his terms and conditions.
The EU has set up an online portal to help dissatisfied customers. In case of complaints about goods or services that you have purchased from us via the Internet, you can find a neutral dispute resolution body at the following address (…) to reach an out-of-court solution. Please note, for some industries and in some countries there are currently (as of 01.02.2017) no dispute resolution bodies. Therefore, as a consumer, you may not be able to use this portal to resolve disputes with us in those countries. For more information, visit the EU’s online portal. We are not obliged to participate in a dispute resolution procedure before a consumer arbitration board. Nevertheless, we are generally prepared to participate in dispute resolution proceedings before a consumer arbitration board.
The Federal Court of Justice deemed this permissible and ruled:
The provision of § 36 para. 1 No. 2 VSBG requires information about the competent consumer arbitration board only from an entrepreneur who has undertaken to participate in a dispute resolution procedure or is obliged to do so by virtue of a legal provision. In contrast, an entrepreneur who has merely agreed to participate in a dispute resolution procedure is exempt from these disclosures.
The persons appointed pursuant to sec. 36 para. 1 No. 2 VSBG, which is necessary for the occurrence of the obligation to notify, is not already fulfilled by the notification of the entrepreneur pursuant to Section 36 (2) VSBG. 1 No. 1 VSBG to be prepared to participate in a dispute resolution procedure before a consumer arbitration board.
This also applies if the notification of the entrepreneur about the extent of his willingness to participate (“basically willing to participate in a dispute resolution procedure”) is unclear. Because from such an ambiguity of the declaration of readiness it is not to be concluded that the entrepreneur has an obligation to participate in the sense of § 36 para. 1 No. 2 VSBG is received or has been received.
Marian Härtel is a lawyer and entrepreneur specializing in copyright law, competition law and IT/IP law, with a focus on games, esports, media and blockchain.
