Upon the applicant’s immediate complaint, the Higher Regional Court has modified the Regional Court’s order and issued the desired cease and desist order.
Being the respondent’s direct competitor, the appellant is entitled to injunctive relief on the grounds of §§ 3, 4 no. 11, 8(1) and (3) no. 1 UWG in conjunction with §§ 312c (1), 312d(1), 355, 356, 357(2) BGB, § 1(1) no. 10 BGB-InfoVO as far as the respondent points out on her web presence on eBay under the heading “legal matters” and in her general terms and conditions linked to the mentioned web presence under the heading “right of withdrawal and return” that returned goods respectively parcels which have not been sufficiently post-paid will not be accepted.
The respondent, who is acting in the course of a business, is bound by the mentioned provisions to provide the consumer with information, especially including proper information concerning the legal framework of the right of withdrawal and return for the buying parties in distance sale contracts (§ 312b BGB). The respondent’s business practice of not accepting goods returned on the basis of the consumer’s right of withdrawal, which is evident from the respondent’s web presence, constitutes a breach of this legal obligation. This is due to the fact that this arrangement can only be interpreted by the interested consumer to the effect that the right of withdrawal and return is under the condition that the return parcel is post-paid, thus imposing a liability to pay in advance onto the consumer. However, this contradicts the unambiguous wording of § 357(2)(2) BGB, which states that the trader has to bear the costs of the return consignment in case of withdrawal and return. Since it is one of the contractual obligations of the entrepreneur to bear the costs of the return consignment in case of a withdrawal from the contract, contractually imposing this duty on the consumer contains the imposition of a liability to pay in advance onto the consumer, which is incommensurable with the legal concept forming the basis of the §§ 320 et seqq. BGB.
The respondent’s infringement of the information duties arising from §§ 312c et seqq. BGB also constitutes an interference with fair competition in the terms of § 4 no. 1 UWG, since it is generally acknowledged that it is one of the purposes of the §§ 312c et seqq. BGB to regulate market behaviour in the best interest of all market participants.
Contrary to the opinion of the Regional Court, the respondent’s anticompetitive behaviour is able to distort competition to the detriment of the other market participants to an extent which cannot be deemed negligible. The assessment is – for one - based on the probability that other competitors could imitate the respondent’s behaviour to the detriment of law-abiding competitors. In addition, the financial strain caused by the demanded advance payment is a direct detriment to the consumer. Moreover, because of this arrangement it must seem doubtful from the perspective of the consumer whether he has validly exerted his right of withdrawal by returning the goods in an unstamped parcel (or can validly exert his right by returning the goods this way).
This assessment is not changed by the fact that the respondent points out correctly that the costs of the return consignment amounting to less than EUR 40 are to be born by the buyer (cf. § 357(2)(3) BGB). This provision only states that in this case the parties can agree on an according cost transfer. It does, however, not enable the buyer to unilaterally make the exertion of the right of withdrawal and return conditional on sufficient stamping.
The applicant is also entitled to injunctive relief on the grounds of §§ 3, 4 no. 11 UWG in conjunction with § 307 BGB as far as the respondent points out on her web presence on eBay and in her general terms and conditions linked to the web presence that returned goods respectively parcels which have not been sufficiently post-paid will not be accepted.
The pre-formulated clause defining the moment a contract of sale shall be deemed to be closed between the parties unreasonably and mala fide disadvantages the consumer. It thus is void as per § 307(1) BGB. EBay-sales (including the “buy it now!” sales) conducted over the German eBay site are governed by general terms and conditions issued by eBay Germany. These terms and conditions also contain a special set of rules regarding the conclusion of the contract to which all eBay users (including the sellers) have to submit themselves.
From the bulk of the contracts of sale concluded on eBay a certain model contract has emerged, including a definition of the moment the contract shall be deemed to be concluded between the parties. The respondent’s terms and conditions deviate from this model to the detriment of the consumer. § 9 of eBay’s terms and conditions also provides for the case of the “buy it now!” option that the contract is deemed to be concluded as soon as the buyer makes use of this option, that is, makes his declaration of intent. Accordingly, the buyer is barred from unilaterally making the conclusion of the contract conditional on the delivery of the ordered goods or the receipt of acknowledgment of order in text form. Thus, the pre-formulated clause is to be qualified as a discrimination of eBay buyers, as from their perspective the conclusion of the contract is not made perfect with their declaration of intent but depends from the (later) execution of the respondent’s declaration of will, although the buyer cannot estimate when it will be made.