ADR Online | New Information Obligations in E-Commerce

The Federal Parliament passed the Consumer Dispute Resolution Act (VSBG) at the beginning of December. The Act implements - admittedly belatedly - Directive 2013/11/EU on alternative dispute resolution for consumer disputes and Regulation EU No. 524/2013 on online dispute resolution for consumer disputes. We first commented on the Act in our article on 11.12.2015 on online dispute resolution in consumer disputes.

While the Consumer Dispute Resolution Act does not require any urgent action (see below), the Regulation, which is directly applicable within the EU, came into force on 09.01.2016. According to Article 14 ss. 1 thereof, traders based in the EU and which enter into online purchase agreements or online agreements for services and online market places based in the EU must immediately include on their websites a link to the online dispute resolution platform established by the European Commission. Since, however, this platform is not yet operational (this is intended to happen on 15.02.2016), the breach of this provision is unlikely to be punishable at this time. At least the internet website exists since Friday 08.01.2016 (!) so that the link should be integrated on the website in an easily accessible manner as a precaution.

The entire legislative project has long been discussed controversially among professionals, not least because of the considerable doubt as to the legislative jurisdiction both of the EU and of the Federal Government in this area and the legal capacities of the alternative dispute resolution entities concerned. It does not seem to be excluded that the Germany Federal Council may submit the matter to a mediation committee. Serious doubts also arose as to the suitability and necessity of the Act having regard to the intended objective of simple enforcement in particular in cross border e-commerce. The consumer already has legal recourse to the state courts where he lives and therefore extremely comfortable access to qualified dispute resolution proceedings. Against that, although the alternative dispute resolution entities in these cases may be situated anywhere throughout Europe (usually at the registered office of the trader) they are intended to be reachable across all borders relatively easily through the new online dispute resolution platform.

The German Act (VSBG) pursues a voluntary concept so that neither consumer nor trader is obliged to use the alternative dispute resolution. Even, however, if the trader is not generally prepared to participate, it will be subject in this respect – including in stationary trading – to information obligations if it maintains a website or uses general conditions of business (Sec. 36 VSBG). Even after a dispute has arisen, the trader must provide the consumer with such information in text form (Sec. 37 VSBG).

Most of the VSBG come into force in the second month following the promulgation i.e. presumably on 01.04.2016. The information obligations of Sec. 36 f. VSBG will however come into force only in the 12th month following the promulgation i.e. presumably on 01.02.2017. Traders therefore have enough time in which to deal with the details and the general and possibly industry-related entities being established. It is, however, already foreseeable that this Act, if it does not fall at the mediation committee stage, will give rise to considerable doubts and operative consequences for the retail trade. Traders and service providers should prepare themselves for these in good time.