Case law

  • Case Details
    • National ID: 5 W 341/07
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 16/11/2007
    • Court: Kammergericht Berlin (Appellate court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Doorstep Selling Directive, Article 1, 1.
  • Headnote
    The omission of the fact that the delivered goods can be returned at the risk of the seller in the instruction about the right of withdrawal (which is mandatory under § 312(1) and (2) BGB), does in principle not constitute unfair trading in the terms §§ 3,4 Nr. 11 UWG (Act against Unfair Competition), if it had been agreed upon (as per § 357(2)(3) BGB) that the consumer has to bear the expenses of returning the goods. A possible infringement of § 312c(1) and (2) BGB can be deemed as a negligible interference with competition under § 3 UWG (Act against Unfair Com-petition)
  • Facts
    The applicant asserts that the parties are competitors on the field of the sale of computer parts via the internet.

    The respondent’s terms and conditions under the heading “Information on the withdrawal from the contract / Right of withdrawal for amazon and eBay-clients” and “Information on the right of withdrawal for customers of the online shop” stated in each case (in extracts):
    “Goods transportable via mail generally are to be returned at your cost, if the goods delivered are those which have been ordered and their price is less than EUR 40 or you haven’t paid the whole price or a stipulated part payment for higher-priced goods at the time of the declaration of withdrawal. Otherwise the return is free of charge for you.”

    These terms and conditions violated § 312c(1) and (2) BGB and the respondent behaved anti-competitively by not pointing out that the delivered goods could be returned at the risk of the seller in case of the withdrawal from the contract. The application for an interlocutory injunction was of no success in the first instance. The applicant has lodged an immediate complaint against the rejecting court order.
  • Legal issue
    The Higher Regional Court for the State of Berlin (Kammergericht) has dismissed the applicant’s immediate complaint. A cease and desist order could not be based on § 8(1) and (3) no. 1, §§ 3,4 no.11 UWG and § 312c(1)(1) BGB. According to § 312c(1)(1) BGB, the selling party of a distance selling contract has to provide the consumer with clear and comprehensible information on the facts set out in Art. 240 EGBGB in conjunction with § 1(1) no. 10 BGB-InfoV in good time before the consumer makes his declaration of intent leading to the conclusion of the contract via one of the used means of distance communication. The legally required information includes those about the legal consequences of the withdrawal. In case of his withdrawal from the contract, the consumer is obliged to return the delivered goods under § 357(2)(1) BGB, if the goods are transportable via mail. The applicant insofar rightly refers to the fact that under § 357(2)(2) BGB the seller has to bear the risk of returned good perishing or deteriorating even if the seller has exercised the option to impose the costs of the return consignment on the consumer granted by § 357(2)(3) BGB. Accordingly, the court agreed with the applicant that the information did not completely describe the legal consequences of the withdrawal. It lacked the indication that the seller bears the risk of the return consignment.

    In spite of this all it seemed doubtful whether this entitles to the assumption that the respondent did not comply with his information duties under § 312c(1) BGB in conjunction with § 1(1) no. 10 BGB-InfoV.

    According to the express rule in § 1(1) no. 10 BGB-InfoV, the information about the legal consequences of the withdrawal the entrepreneur has to provide to the consumer in any case comprises the information about the amount the consumer has to pay for the services provided (§ 357(1)(1) BGB). § 1(1) no. 1 BGB-InfoV does not contain any further express rule on the content and the extent of the information about the legal consequences of the withdrawal. If one interprets this provision in the light of its meaning and purpose, the requirement to describe all legal consequences of the withdrawal in all alternatives and variations possible under the law completely and in all detail seems to go to far. The purpose of § 312c(1) BGB and § 1(1) no. 10 BGB-InfoV is to protect the consumer. Consumer protection on the one hand requires that as much information as possible is provided to the consumer. On the other hand, effective consumer protection can only be guaranteed if the information is unmistakable and unambiguous for the consumer. It can be assumed that a description of the withdrawal’s legal consequences in all their details fails the informative purpose, because it would be demanding too much from the receptiveness and comprehension of the average consumer without previous legal training. All in all, it would be an excessive demand from both parties.

    However, the applicant disregards advice no. 7 attached to the model information on the right of withdrawal, which provides that that the words “at our risk and expenses” set in squared brackets in the model instruction is to replaced with the wording “Goods transportable via mail generally are to be returned at your cost, if the goods delivered are those which have been ordered and their price is less than EUR 40 or you haven’t paid the whole price or a stipulated part payment for higher-priced goods at the time of the declaration of withdrawal. Otherwise the return is free of charge for you” used by the respondent if – as was the case here – it has been stipulated that the consumer has to bear the costs of the return consignment in accordance with § 357(2)(3) BGB. Even if one – in spite of the abovementioned doubts – assumes that the respondent did not comply with her obligation under § 312c(1) BGB to provide clear and comprehensible information on the legal consequences of the withdrawal and has therefore violated a market behaviour provision in terms of § 4 no. 11 UWG, this does not justify a cease and desist order because the impairment of the collective consumer interests protected by § 312c(1) BGB caused by the criticised incompleteness of the information is limited to a small area. Therefore the interference with competition is to be qualified as negligible and the possible violation of a market behaviour provision as a bagatelle case

    The desired court order could neither be based on § 8(1) and (3) no. 1, §§ 3, 4 no. 11 UWG and § 312c(2)(1) BGB. According to § 312c(2)(1) BGB, the supplier has to provide the consumer – beside the contractual terms - with the information required by Art. 240 EGBGB in conjunction with § 1(4) BGB-InfoV. Since § 1(4)(1) no. 1 BGB-InfoV refers to § 1(1) BGB-InfoV with respect to the required information, the above applies analogically. The different points in time at which the information has to be provided under § 312c(1) BGB and § 312c(2) BGB do not justify a different assessment.
  • Decision

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