Draft bill on the introduction of the withdrawal button published

In November 2023, we reported in our article as well as in an in-depth essay (Billing/Vetter, K&R 2024, 387) about the upcoming introduction of the “withdrawal button” and its associated challenges. Now, the Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz ‒ BMJV) has published its draft bill for implementation. The draft transposes Directive (EU) 2023/2673 into German law and confirms some of the of the already discussed problems for online retailers. Companies with online B2C operations should familiarise themselves early with the new statutory obligations, which will take effect on 19 June 2026.

The core provision in detail: the new Sec. 356a of the draft German Civil Code (Bürgerliches Gesetzbuch – Entwurf ‒ BGB-E)

The centrepiece of the draft bill is the proposed Sec. 356a BGB-E. This provision requires companies that enable consumers to conclude distance contracts via an “online interface” to provide an electronic withdrawal function. The intention is to make withdrawing from a contract as straightforward for consumers as concluding it.

The withdrawal function is designed as a multi-level process, similar to the existing cancellation button under Sec. 312k BGB:

1. The withdrawal function (first button): The website must include a clearly labelled button, such as “withdraw from contract” or a similarly unambiguous phrase (Sec. 356a para. 1 sent. 3 BGB-E). This button must be “continuously available, prominently placed and easily accessible” to the consumer during the withdrawal period (Sec. 356a para. 1 BGB-E).
2. The confirmation page: After clicking the first button, consumers must be directed to a page where they can provide or confirm the information necessary for the withdrawal. According to Sec. 356a para. 2 BGB-E, this includes the consumer’s name, information to identify the contract and the preferred communication method for the confirmation of receipt.
3. The confirmation function (second button): The withdrawal declaration is only transmitted to the company when the consumer clicks a second button labelled “confirm withdrawal” or a similarly unambiguous phrase (Sec. 356a para. 3 BGB-E).
4. Confirmation of receipt: The company must immediately confirm receipt of the withdrawal on a durable medium (such as email) (Sec. 356a para. 4 BGB-E). According to Sec. 356a para. 5 BGB-E, the withdrawal is considered to have been received within the withdrawal period as long as the consumer submitted the online withdrawal statement by clicking the second button within the withdrawal period.

Unresolved practical problems become law

The draft bill almost literally adopts the requirements of the EU Directive, leaving key implementation questions, which we have already discussed, unresolved (see Billing/Vetter, K&R 2024, 387, 389 et seq.):

• Continuous availability vs. individual right of withdrawal: The draft confirms the problematic combination of requirements that the withdrawal button must be “continuously available during the withdrawal period” and at the same time “easily accessible”. The explanatory notes to Sec. 356a BGB-E (pp. 33 et seq.) clarify that, particularly after guest orders without registration, the button must generally be accessible without a prior login. This essentially forces companies to display the withdrawal function permanently to all website visitors, regardless of whether they (still) have a right of withdrawal. The explanatory note in the draft rather curtly states: “As a rule, the requirements will be met if the withdrawal button is visually highlighted on the company’s (main) website.” This will likely result in considerable administrative burden from processing unjustified withdrawal declarations. A permanent display could also be considered misleading and thus have implications under competition law.
• Contracts concluded via third-party sites: Another issue already known from the discussion about the (German) “cancellation button” arises in cases where the consumer does not conclude the contract via the company’s own website but through an intermediary platform. Similar to the cancellation button under Sec. 312k para. 2 BGB, Sec. 356a para. 1 BGB-E at least implicitly requires that platform operators also provide a withdrawal button, since it must be available “on the online interface” through which the contract can be concluded. This follows the aim of making withdrawal via the button solution as easy as concluding the contract. In the context of the cancellation button, practice has developed a “link-out solution”, redirecting the consumer to the relevant company’s website. However, the issue remains that in such cases the company is dependent on the platform operator’s cooperation to comply with Sec. 356a BGB-E.
• Possibility of partial withdrawal: The possibility of a partial withdrawal (e.g., withdrawal only regarding certain items from a larger order) is not addressed in Sec. 356a BGB-E. The explanatory notes suggest that the query for contract identification can be designed to enable partial withdrawals (e.g., by allowing the selection of individual items in an order summary). However, there is no clear legal requirement, so it remains possible that the consumer is not able to select individual items on the confirmation page. To avoid an “all-or-nothing” situation for withdrawals via the button, companies should at least provide an optional input field for further details on a partial withdrawal.
• Data collection for contract identification: The draft requires information to identify the contract. However, similar to the provision on the cancellation button in Sec. 312k para. 2 BGB and the proposal in the new Art. 11a para. 2 lit. b of the amended Consumer Rights Directive 2011/83/EU, Sec. 356a BGB-E leaves open which data (e.g., a longer order or contract number) may be requested without making withdrawal unnecessarily difficult or violating the principle of data minimisation in Art. 5 para. 1 lit. c GDPR. For practical purposes, it is advisable to always request both the consumer’s name and the order or contract number, with an optional field for further specification of the goods or services, allowing for partial withdrawal. This is unlikely to be regarded as an unnecessary complication of exercising the withdrawal right, as all of this information is necessary in some cases to process the withdrawal correctly, while the generic button solution (without login) does not allow for any initial individualisation.

Further changes and possible sanctions

In addition to introducing the withdrawal button itself, the draft bill includes several accompanying amendments:

• New information obligations: Companies will have to inform consumers in their instruction on withdrawal for distance contracts “about the existence and placement of the withdrawal function” (Art. 246a Sec. 1 para. 2 sent. 1 and Art. 246b Sec. 1 para. 1 no. 19 of the draft Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche – Entwurf ‒ EGBGB-E)). For the model withdrawal instruction in Annex 1 to the EGBGB, a new drafting note 3 is formulated, further illustrating the complexity of practical implementation:
  
  “If you are required to provide a function enabling the consumer to withdraw from the contract concluded online, include the following: ‘You may also exercise your right of withdrawal online at [insert internet address or other suitable information indicating where the withdrawal function is available]. If you use this online function, we will immediately send you a confirmation of receipt on a durable medium (e.g., by email), containing the content of your withdrawal declaration as well as the date and time of receipt.’ If you give the consumer the option to electronically fill out and submit the withdrawal information on your website, include the following: ‘You can also electronically fill out and submit the model withdrawal form or any other clear statement on our website [insert internet address]. If you use this option, we will immediately confirm receipt of such a withdrawal on a durable medium (e.g., by e-mail).’”
  
  These phrases will need to be included in withdrawal instructions for distance contracts to preserve their presumption of statutory compliance. Whether such extended instructions are truly useful for consumers’ information needs remains questionable.

• Severe fines: A violation of the obligation to provide the withdrawal button is classified as an infringement of consumer interests and thus as an administrative offence (Art. 246e Sec. 2 para. 2 no. 14a EGBGB-E). According to Art. 246e Sec. 2 para. 3 EGBGB-E, such violations may be sanctioned with fines of up to four percent of the annual turnover provided the company had a turnover of at least EUR 1.25 million in the previous year. However, under Art. 246e Sec. 2 para. 5 EGBGB-E, the administrative offence can only be pursued as part of a coordinated enforcement measure under Art. 21 of Regulation (EU) 2017/2394.

Outlook

The draft bill leaves no doubt that the withdrawal button will soon become a legal reality, with all the ambiguities and practical issues associated with the EU Directive. A solution of existing contradictions and practical challenges by the German legislator is not to be expected. Companies operating in e-commerce with consumers should prepare for the new provisions in good time. These will be fully applicable from 19 June 2026, less than a year from now. Companies should therefore already begin planning the technical and administrative implementation to avoid warnings and fines. This concerns the set-up of the procedure for the withdrawal button described above, adjustments to internal processes for handling withdrawal declarations, and updating contract documentation.