The Senate is of the view that the information as to the firm and its address is not given in a clear and comprehensible manner. Providing this information below the heading “Impressum” on a special page to which users were directed via the link “contact” in bars at the top and bottom of the page was not sufficient. The precise requirements for a business to sufficiently notify the consumer are not defined in the German provisions or in Art. 4 (1) and (2) Directive 97/7/EC. The aim and purpose of the statutory information requirement on identity and address is that the consumer is clearly and comprehensibly informed of whom he is doing business with. It is not sufficient that the consumer is merely in the position whereby he can find out this information. Therefore, a minimum requirement is that the information is displayed in a prominent place on the online form, so that the consumer cannot avoid seeing it. The link “contact” is not sufficiently clear, as it would be concealed from a large number of users, that this was not merely a mailto-link but rather contained information as to the firm and address of the provider. Furthermore, the title “Impressum” can also cause confusion, as an “Impressum” normally only contains the names of the responsible persons according to media law. In addition, the information on essential features of the service is not displayed clearly and comprehensibly on the respondent’s web page. Through the mere possibility to be informed of the essence of the business via clicking on “terms and conditions” it is not made sufficiently clear to customers, that the transaction with the respondent merely represents an instruction to procure another transaction, and does not e.g. encompass a bet in itself.
Furthermore the respondent has also breached its duty to give information on the customer’s right of withdrawal according to § 2 (2) No. 8 FernAbsG as it then applied (§312c (1), 1st sentence No. 1 BGB in conjunction with Art. 240 EGBG and § 1 (1) No. 9 BGB-Info-V). A right of withdrawal is not excluded according to § 3 (2) No. 4 FernAbsG as it then applied (§312d (4) No. 4 BGB), because the contracts at issue are not contracts of betting or lottery services. The speculative or aleatoric element required by Art. 6 (3) Distance Selling Directive 97/7/EC is missing, as the agency business merely forwards lotto tickets. A withdrawal is therefore possible and information thereon is necessary.
Comment: cf. hereto also the judgment of the OLG (Oberlandesgericht – higher regional court) Munich of 11.9.2003, NJW-RR 2004, 913.