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E-Commerce dunning practice

The Internet has been one of the most important sales channels for many retailers for years. This is not at least due to changes in consumer behavior, who prefer to do their shopping comfortably from home at the click of a mouse rather than going to the mostly crowded city centres in their free time.

The possibility of cancelling contracts concluded on the Internet within 14 days without any problems also makes shopping on the Internet risk-free and attractive for many.

In addition to the possibility of operating your own online shop, it is particularly useful for smaller retailers to offer their goods on platforms such as eBay or Amazon Marketplace. Unfortunately, the new form of distribution also has its downsides: For example, many lawyers have specialized in reminding online merchants of formal errors on their websites or unclear descriptions of offers for a fee. Even competitors do not shy away from admonishing competitors. Here one increasingly gets the impression that the protection of fair competition is not always at the centre of interests. Rather, it is about creating a lucrative, new line of business alongside the actual activity as a trader.

Here the cautioners usually have an easy job. The large number of legal regulations to be observed makes it difficult even for experienced online merchants to design their online presence free of legal errors. One of the many duties of an online merchant is to make the ordering process transparent. He must also guarantee the data security of the customer data transmitted to him by means of SSL encryption. The most error-prone areas include in particular the design of the shop terms and conditions and the mandatory instruction on the right of revocation. Many online shop operators rely on sample texts from the Internet for these extremely adhesive questions, which are often outdated and incorrect or not tailored to their individual needs. On the one hand, this has the consequence that individual GTC are often ineffective, and on the other hand, there is the threat of sensitive consequences under competition law.

The situation has become even worse with the entry into force of the law implementing the consumer directive on June 13, 2014, which has established new rules for online merchants' daily dealings with customers virtually overnight. The result was a wave of warnings, which was associated with considerable costs for many operators.

In a recent decision of September 15, 2015 (OLG Hamm 4 U 105/15), the OLG Hamm tried to put a stop to the warning delusion by deciding that a warning activity mainly serving to incur costs is abusive in law, but for the operators of an online shop there is still the risk of becoming the addressee.

Another difficulty is that the legal requirements in this area are subject to constant change. Only those who consistently follow changes in the law and relevant court decisions can be sure of meeting all current requirements. For example, with the entry into force of the new Electrical and Electronic Equipment Act 2 on October 24, 2015, new requirements have been created especially for online retailers selling small and large electronic devices.

We will be happy to advise you on all relevant issues relating to E-Commerce. We support you in the custom-tailored design of your general terms and conditions and revocation instructions, inform you about all important information obligations and inform you in good time about current legal changes and changes in jurisdiction, so that you are spared from the usual warning practice.

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