On 25th of June 2020, the Court of the European Union (“CJEU”) resolved on obligations to provide information regarding alternative dispute resolution on websites.
The proceeding is initiated between Verbraucherzentrale Bundesverband eV (Federal Union of Consumer Organisations and Associations in Germany) and и Deutsche Apotheker- und Ärztebank eG (named “DAAB”).
The facts of the case
- DAÄB is a cooperative bank, which operates the website apobank.de [1], via which no contracts are concluded.
- The website’s legal notice contains information on DAÄB ‘s willingness or obligation to take part in a dispute resolution procedure before a consumer conciliation body.
- In addition, the general terms, and conditions of the contracts that DAÄB concludes with consumers. However, these terms and conditions contain no information on DAÄB ‘s willingness or obligation to take part in such a dispute resolution procedure. Also, when DAÄB concludes with a consumer a contract subject to the terms and conditions at issue, the consumer receives, in addition to the document containing the said general terms and conditions, a list of prices and services also drawn up by DAÄB, on the reverse of which it provides information on its willingness to take part in a dispute resolution procedure.
- The Federal Union is of the opinion that the information that DAÄB commits to use consumer conciliation bodies should be included in the general terms and conditions at issue and that, consequently, DAÄB‘s business practice is contrary to Paragraph 36(2) of the Law on alternative modes or resolution of consumer disputes (VSBG).
- In those conditions, the Federal Union brought before the Regional Court Düsseldorf an action seeking an order that DAÄB, on pain of specified judicial enforcement measures, must desist from not providing in the general terms and conditions at issue information as to its willingness or obligation to take part in a dispute resolution procedure before a consumer conciliation body.
- Regional Court Düsseldorf dismissed the action, on the ground that Paragraph 36(2) of the VSBG together with the general terms and conditions only id the trader uses them. The Regional Court accept the requirement of Article 36(2) of the VSBG.
- However, the Federal Court brought an appeal against the decision of the Regional Court before the referring court-Higher Regional Court Düsseldorf in Germany.
Higher Regional Court Düsseldorf decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
- Does the obligation to provide information arise under Art. 13(2) of the Directive 2013/11[1] [2], when the trader makes the general terms and conditions available for download on his website, on which no contracts are concluded?
- If question 1 is affirmative: does the trader meet his obligation to provide information in the general terms and conditions elsewhere on the company’s website?
- Does the trader meet his obligation to provide information in the general terms and conditions, in addition to a document containing the general terms and conditions, he provides the consumer with a list of prices and services containing the information on alternative dispute resolution?
What does the CJEU resolve on the matter?
- The answer of the first question is that Article 13 (1) and (2) of the Directive 2013/11 should be interpreted in a way that a trader, who provides in an accessible manner on his website the general terms and conditions of sales or services contracts, but concludes no contracts with consumers via that website, must provide in his general terms and conditions information about the alternative dispute resolution entity or the alternative dispute resolution entities by which that trader is covered, when that trader commits to or is obliged to use that entity or those entities to resolve disputes with consumers.
- The information must be provided ‘’in’’ the general terms and conditions, where they are published on the trader’s website, and not in other documents accessible on that website or under other tabs thereof.
- The obligation to provide information is no limited to cases where the trader concludes contracts with consumers via his website.
- The information obligation provided therein is not satisfied if a trader who publishes his general terms and conditions on his website omits that information but includes it elsewhere on his website.
[1] [3] Information about ADR entity or ADR entities by which those traders are covered, when those traders commit to or are obliged to use those entities to resolve disputes with consumers. That information shall include the website address of the relevant ADR entity or ADR entities – to be be provided in a clear, comprehensible and easily accessible way on the traders’ website, where one exists, and, if applicable, in the general terms and conditions of sales or service contracts between the trader and a consumer