Distance selling law
The Fernabsatzrecht deals with the special rules for the distribution of goods and services from businesses to consumers, without direct contact between the parties. Since the modernization of the law of obligations , which came into force on January 1, 2002 , the German distance selling law has been regulated in the Civil Code ( § 312b to 312d BGB). The Distance Selling Act previously applied . This law implemented the European Distance Selling Directive. It came into force on June 30, 2000.
scope of application
Distance selling law applies to distance selling contracts, i.e. contracts concluded between consumers and businesses by telephone, internet or other means of distance communication and within the framework of a sales or service system organized for distance selling ( Section 312c BGB).
The distance selling regulations in accordance with Section 312 (2) BGB do not apply to contracts, among other things
- via distance learning ,
- on the part-time use of residential buildings,
- about insurance and its brokerage,
- about real estate transactions,
- about the delivery of food, beverages or other household items for daily use that were delivered by entrepreneurs as part of regular trips (example: pizza delivery ),
- about the provision of services in the areas of accommodation, transport, delivery of food and beverages as well as leisure activities for a specific point in time,
- on the use of public telephones
as well as contracts that were concluded via vending machines.
Information requirements
If an entrepreneur uses means of distance communication to conclude a contract, he is obliged to provide the consumer with certain information in accordance with Section 312d BGB . Among other things, he must give the consumer his identity and a summons address and inform him about the essential characteristics of the goods or service. In addition, a reference to the existence of a right of cancellation or return and its details is required (the so-called cancellation policy ).
The content of the information obligations results from the regulation on information obligations under civil law (BGB-InfoV).
From the point of view of the entrepreneur, proper cancellation policy is of great importance. If the cancellation policy is incorrect, the cancellation period begins in accordance with Section 355 (3) sentence 2 BGB not to run.
According to a ruling by the European Court of Justice , consumers must receive essential information in writing or on a durable medium without their intervention when concluding a contract on the Internet :
- Identity and, in the case of advance payments, the address of the supplier,
- essential properties of the goods or services,
- Price including all taxes and delivery costs,
- Details regarding payment and delivery or fulfillment,
- a possible right of withdrawal,
- Information about customer service and applicable warranty conditions;
- the termination conditions for an indefinite contract period or a contract period of more than one year.
One company only made this available to consumers on its homepage or by email via a link. The Upper Austrian Chamber of Labor (which, among other things, represents consumer interests in Austria) complained about this deficiency in court and was successful with it. In addition, not only consumer concerns were affected, but also the facts of unfair competition .
Right of withdrawal and return
In the case of distance sales contracts, the consumer is in accordance with § 312g BGB basically a right of withdrawal according to § 355 BGB. The consumer can revoke his declaration of intent within a period of two weeks without giving reasons and is then no longer bound by the contract.
This period begins as soon as the entrepreneur has fulfilled his above-mentioned information obligations in writing. The text form i. S. d. Section 126b of the German Civil Code is already respected on the Internet if the entrepreneur provides the instruction for downloading and printing. In terms of process, however, there is the problem that the entrepreneur would have to prove access to and completeness of the instruction. If goods are delivered, the period begins at the earliest when the consumer has received the goods.
There is no statutory right of withdrawal according to Section 312g (2) BGB for distance contracts and the like. a. in the following cases:
- for the delivery of goods that were manufactured according to customer specifications or that were clearly tailored to personal needs or that were not suitable for return due to their nature or that could spoil quickly or whose expiry date would have been exceeded,
- for the delivery of audio or video recordings or software, provided that the delivered data carriers were unsealed by the consumer,
- for the delivery of newspapers, magazines and magazines,
- for the provision of betting and lottery services or
- which were closed in the form of auctions .
- for the delivery of fresh goods (e.g. flowers)
The right of withdrawal can u. U. be replaced by an unrestricted right of return . The consumer's right of withdrawal (or return) is not mandatory , so it cannot be contractually excluded.
The question of whether the buyer should also be reimbursed the shipping costs ( forwarding costs ) in the event of a justified cancellation was raised by the Higher Regional Court (OLG) Karlsruhe on September 5, 2007 (Az. 15 U 226/06) in accordance with the EC Distance Selling Directive in favor of Decided by the buyer. The judgment was appealed against to the BGH (Az. VIII ZR 268/07), which in turn submitted the question to the European Court of Justice (ECJ) for decision (Az. C-511/08). On April 15, 2010, the ECJ ruled in favor of the consumer that the imposition of shipping costs contradicted the aim of the Distance Selling Directive. As a result, the BGH ruled on July 7, 2010 that Section 346 (1) of the German Civil Code (BGB) should be interpreted in accordance with the guidelines and that the "sending costs" should therefore be borne by the seller. The costs of the return, on the other hand, have to be borne by the buyer, unless another cost bearing has been agreed or the item cannot be returned by post (Section 357 (6), p. 3 BGB).
Uniform rights for consumers in Europe
On June 13, 2014, the law to implement the consumer directive came into force in Germany. The consumer directive ensures that uniform rights apply to consumers within the EU. In this context, a uniform cancellation policy was created. Consumers can shop online across borders within the EU without having to deal with various legal regulations.
Web links
Legal texts
- BGB-InfoV at the BMJ
- Directive 97/7 / EG (PDF) ofthe European Parliament and of the Council of May 20, 1997 on consumer protection in the context of distance contracts (Distance Selling Directive)
Jurisprudence
- Information requirements in distance selling and summary of judgments
- Summary of a lawyer’s consumer rights in distance selling law
Advice options for consumers
- Consumer centers
- Federal Association of Consumer Organizations
- German Consumer Protection Association e. V.
Individual evidence
- ↑ Judgment of the European Court of Justice of July 5, 2012 in the case C-49/11 PDF file ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- ↑ AK success against Content Services ( memento of the original from June 6, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Higher Regional Court Karlsruhe (Az. 15 U 226/06) of September 5, 2007
- ↑ ra-online GmbH: judgment> VIII ZR 268/07 | BGH - BGH: Charging the consumer with costs for sending goods in the case of distance selling is not permitted <free-urteile.de. Retrieved on July 27, 2019 (German).
- ↑ Overview of the main changes. November 13, 2013, accessed November 13, 2013 .
