OLG Munich with warning verdict on checkout at online retailers

So i.m. reached a potentially relevant verdict of the OLG Munich, because although it is based on the checkout page of Amazon, it actually affects all marketplaces and online shops.

The proceedings were brought by the Competition Centre against Amazon’s German subsidiary. At the request of the Competition Centre, the Regional Court of Munich I had ordered Amazon in a specific case to refrain from offering parasols and/or clothing in the online shop without being on the order-making page – that is, on the page on which the consumer can submit its offer to conclude the purchase contract by clicking on the order button – to indicate the essential characteristics of the goods to be ordered (LG Munich I, judgment of 04.04.2018, Az. 33 O 9318/17). Amazon had appealed against that ruling.

In the specific case, only the following product information was available on the order closing page with regard to a parasol selected for purchase, except for the illustration of a product photo:

“S. …Rhodes parasol, natural
Approx. 300 x 300 cm, 8-piece, square
EUR 328.99
Quantity: 1 Change”

There was no link to the product page.

For a dress, Amazon limited itself to specifying the name and color of the dress on the order completion page.

In an online shop, however, according to Section 312j Para. 1 BGB itself indicate the essential characteristics of the product on the order closing page. That’s what it wants, the so-called button solution. In the case against Amazon and decided by the LG München I, this would be information about the material of the fabric, the frame and the weight in the case of a parasol and the information about the material of the product in the case of the dress offered. In the Court’s view, the information provided elsewhere on the website, e.g. in the product overview, is irrelevant in that regard. The district court pointed out in its decision that the inclusion of a link to the product page would also have been insufficient.

The OLG Munich today rejected Amazon’s appeal against the verdict. In the judgment on reference number 29 U 1582/18, the latter held that essential features under Paragraph 312j, paragraph 2 BGB must be listed in full on the order page and that a link to the product page is not sufficient. Amazon must therefore change the checkout for Germany and for German retailers and ensure that special information is technically possible at all. The judgment is provisionally enforceable. It is not yet clear whether revision has been authorised. If not

From the point of view of the Competition Centre, the final issue in the proceedings was the fundamental question, including for traders operating on the platform, whether Amazon itself, as a retailer, had the legal information obligations with regard to the indication of the essential characteristics of the selected products on the order completion page. Other Higher Regional Courts had already ruled that the individual link was not sufficient.

In the end, the Higher Regional Court of Munich probably had no choice but to make this decision. The law is badly done here and urgently needs to be revised. The problem is that it is almost impossible to comply with the law, in its current form. Because it is unclear what are essential characteristics at all. This can be seen differently for each product, is the final end of an interpretation that can be disputed and it is almost non-automating. Online retailers can only be advised to at least take their own technical precautions and, above all, to list more than too little.

The verdict definitely has the potential to trigger a huge wave of warnings, since on the one hand hardly anyone has the problem on the radar, warning clubs like the IDO are currently very active, the problem is currently not technically even technically under control. in any case, it is unlikely that Amazon, EBay etc) and a possible Unclean Hands objection from a competitor will not be relevant either.

(1) On websites for electronic commerce with consumers, in addition to the information provided in Section 312i paragraph 1, the trader must clearly and unify, at the latest at the beginning of the ordering process, whether there are delivery restrictions and which means of payment accepted.
2. In the case of a consumer contract in electronic commerce which is intended to provide the trader with a fee, the trader shall provide the consumer with the information referred to in Article 246a, 1 sentence 1 sentence, 4, 5, 11 and 12 of the Introduction Act. to the Civil Code, immediately before the consumer places his order, make available in a clear and comprehensible manner in a highlighted manner.
(3) In the case of a contract referred to in paragraph 2, the trader shall design the ordering situation in such a way that the consumer expressly confirms with his order that he undertakes to make a payment. If the order is made by means of a button, the obligation of the entrepreneur from sentence 1 is only fulfilled if this button is clearly legible with nothing but the words “order subject to payment” or labeled with a corresponding unambiguous wording.
4. A contract referred to in paragraph 2 shall only be concluded if the trader fulfils his obligation under paragraph 3.
5. Paragraphs 2 to 4 shall not apply if the contract is concluded solely by individual communication. The obligations under paragraphs 1 and 2 do not apply to websites relating to financial services or to contracts relating to financial services.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.