Being active in the German e-commerce market brings with it a few legal tasks. Various laws must be considered, and it is not always easy for traders to do so. The specifications begin with the shop and its presentation, but also with the products to be sold, some obligations must be considered. How the purchase comes about and what happens afterwards is also a framework given – always with a view to consumer protection, which exists in Germany behind many legal provisions regarding e-commerce. However, the requirements of the European Union also play an important role for German law. Here, we give an overview of a selection of basic topics that should be considered. In addition, however, there are various other requirements.
Since retailers should also behave fairly with each other, and since this does not always work out without further ado, there is the law against unfair competition (UWG) in Germany. Consumer rights are also incorporated here and are represented by consumer protection organizations. Unlike in many European countries, there is also the possibility here of asserting claims as a competitor directly against a competitor. This is implemented in practice by means of warnings with which competitors, with the help of lawyers or professional associations, can demand cease-and-desist letters which are subject to a contractual penalty. This procedure is widespread and is also used for even the slightest breach of the law. The costs incurred directly by the dunned party as a result of the warning start on average with low three-digit amounts – but depending on the legal violation, four-digit amounts are also not uncommon. If the punishment-proven cease-and-desist action is not filed, court proceedings will generally be instituted.
User friendliness is the be-all and end-all for online shops. But this is not only determined by the design or the general appearance. In Germany, there are some rules that ensure at the legal level that the rights of private buyers, i.e. consumers, are not neglected. In this respect, various information obligations are important, which the retailer must fulfil. But data protection also plays an important role. In general, it is also important that all necessary information be provided in German in a way that is easy to understand.
The essential component of all German online shops is the legal notice. This is an identification of the provider which contains all legally necessary information that the visitor needs to know about who he/she is dealing with. Depending on whether the shop is operated by a natural person or a legal entity, the scope of the data to be provided differs. The legal notice must be easily recognizable, directly accessible and permanently available. The courts have defined exactly which requirements are to be met by the legal notice, for example it must be accessible from every shop page with a maximum of two clicks.
Data protection is essentially guaranteed by the EU’s General Data Protection Regulation (GDPR). It regulates the automatic or semi-automatic collection of personal data based on the principle that it is initially prohibited. Instead, a permit is required for the survey. It can result directly from the law – as for data which makes the provision of the online offer possible in the first place (so-called usage data), or which is necessary for the execution of the contract (inventory data). In addition, the consent of the data subject to the collection of their respective data can also be relied upon. Online shops must therefore always provide an easy to find and retrievable data protection policy, which informs the user in detail about the circumstances of the collection and any rights, such as the deletion the collected data. This policy is subject to high requirements and a series of mandatory information is defined which must be included. In addition, affected parties have various rights, for example to information or simple transferability of the stored data to third parties.
In order to keep business transactions as simple as possible, pre-formulated contract terms can be used for many contracts. This approach is not mandatory but is used by almost all retailers. Depending on whether they are applied to consumers or businesses, the legally permitted possibilities differ. In B2C business, there are several clause prohibitions that must be observed – consumer-protective statutory provisions cannot be circumvented using general terms and conditions. In the event of difficulties and subsequent legal proceedings, doubts about the interpretation shall be at the expense of the user of the GTC.
In the case of contracts concluded outside business premises, consumers can withdraw from the contract without reason even after delivery of the goods, i.e. to revoke it. Among other things, this is to ensure that they can inspect the goods in the same way as in stationary trade. Traders must properly inform consumers about this right of withdrawal – if this is not the case, the withdrawal period will be extended, and costly warnings may be issued. In most cases, the 14-day period within which a consumer must declare the withdrawal to the retailer begins with the receipt of the goods. Once the revocation has been declared, a customer then has 14 days to send the return. If the right of withdrawal is used, the retailer is obliged to return the services received – however, he/she can withhold payment until the goods have been received or the buyer presents proof of shipment.
Consumers can unpack and test the goods, for example furniture may be assembled, or the music system may be unpacked and connected. If a consumer uses the goods to an extent that goes beyond testing, the seller may claim compensation. The consumer must bear the return costs himself, but many online retailers offer free return shipping. However, the right of withdrawal does not necessarily apply to all goods; hygiene articles, for example, may be excluded.
Melvin Dreyer has been working as a legal editor for the Händlerbund since mid-2018. During his studies, he was particularly interested in tax law, but now the graduate lawyer regularly reports and advises on legal news and issues relating to e-commerce, tax law and European law.
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