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Germany: Non-compliance with E-commerce rules is misleading advertisement

The Court of Appeal of Bremen (German version of the decision) has recently confirmed that competitors and consumer associations in Germany may challenge non-compliances with e-commerce rules. Any such non-compliance can be attacked on the basis of the German Unfair Competition Act (“UWG”). The court dealt with two essential aspects of
E-Commerce: 1. Is it a misleading advertisement to offer products if the delivery period is unspecified, namely uses the word “expected” (1-3 working days)? 2. Is an online-sale misleading if the right to revoke the offer within 14 days is only visible when scrolling down the website (decision of 05.10.2012, Az: 2 U 49/12)?

The case
In the present case, the plaintiff wanted to achieve an injunctive relief against the defendant for the reason that the defendant sold products in an online-shop using the term “expected delivery period: 1-3 working days” for specifying the delivery time. In addition, the notice of the consumer`s right to revoke the offer is located at the bottom of the website which can only be reached by scrolling down the page. In the plaintiff`s point of view, this must be seen as non-compliance with competition law.

Delivery period in online shops
The Court of Appeal classified the use of the wording “expected delivery period: 1-3 working days” to be misleading for the reason that the term “expected” is too vague. Delivery VanWith this decision it followed the lineage of former decisions (German version) of other District Courts which have considered e.g. the similar wording “delivery usually within… days” to be too vague and therefore misleading.

In the Court`s opinion, the term “expected” violates sections 3, 4 no. 11 of the German law on unfair competition (UWG), which base on Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising.

The Court said that the expression “expected 1-3 working days” is too vague and thereby less transparent as e.g. the designation “delivery time approx. 3 working days” (Decision in German) which could be admissible. A sufficient reliability with regard to the determination of the delivery time would not be secured if the designation “expected” is used. The relativizing expression “expected” would lead to a lack of transparency and would not give any possibility of delineation because it does not define exceptional cases. The consumer would therefore be unable to make a reliable calculation for the due date of the services and thereby is prevented from the possibility of putting the seller in default.

Notice of right to revoke an offer in online shops
According to the section 355 para. 2 of the German Civil Code (“BGB”), the online seller has to inform the customer that he has the right to revoke his online offer within 14 days, the Court stated that it does not comply with art. 246 para. 1 no 10 EGBG (German version) placing this information at the bottom of the website which can only be reached by scrolling down when the relevant information for the purchase decision are located on the top and are visible for the consumer without scrolling down. In view of this strict requirement and the sophisticated litigation practice in Germany, it is expected that many competitors and consumer associations will send warning letters if companies do not identify their information as to the notice of revocation sufficiently clear.

Practical advice
The consequence of this decision is the necessity to specify the delivery time as accurately as possible. The wording must not lead to disproportionate scopes. The use of the term “approx.” can still be seen as admissible for the reason that the court repeats former decisions.