New Duty to Inform for Operators of Online Shops and Platforms

On 9 January 2016, the EU regulation on online dispute resolution for consumer disputes (Regulation (EU) No. 524/2013) came onto effect. Pursuant to this regulation, an online platform will be established (the “ODR-Platform”) by means of which disputes between consumers and traders, which sell their goods or services online shall be resolved out of court.

Traders are not obliged to participate in such out of court dispute resolution. However, they are obliged to inform their clients about this procedure. To this end, traders must set a link to the ODR-Platform, which, according to general assessment shall best be located in the imprint. The additional standardized obligation to provide an Email address is nothing new and is already stipulated in the regulation regarding the obligation to provide an imprint (para. 5 of the German Telemedia Act).

However, the ODR-Platform will not be operational until 15 February 2016. Until then, only general information in the English language can be found under the link http://ec.europa.eu/odr/.

The duty to inform affects all traders which distribute goods or services to consumers online within the European Union. It remains unclear whether a breach of the duty to inform constitutes a violation of competition law and can provoke a warning. In any case, the member states must ensure that sanctions against violations are “effective, proportionate and dissuasive” pursuant to the wording of the regulation. Against this background, operators of online shops and commercial platforms should by all means fulfill their duty to inform. Even if the ODR-Platform is not yet operational this duty should already be fulfilled.

Moreover, the Federal Council of Germany (Bundesrat) will decide on the Consumer Dispute Resolution Act (Verbraucherstreitbeilegungsgesetz – “VSBG”) in January 2016, in order to put this Act into effect as of 1 April 2016. According thereto, as of January 2017, traders will be obliged to provide information on their website and additionally in their general terms and conditions whether they are willing to participate in dispute resolution before a consumer arbitration board. An exemption from this obligation shall only be available for companies with less than 10 employees.