A store operator for dietary supplements did not provide the telephone number, email address and fax number in addition to his address in the withdrawal policy. The store operator was warned by a competitor due to the missing information.
The store operator assumed that it was not absolutely necessary to include data such as the telephone number in the withdrawal policy. The model withdrawal policy only requires this information if the product is available. He interpreted the term availability broadly and was of the opinion that the information could also be omitted if it was temporarily unavailable or if the trader did not want the information to be available specifically for the withdrawal.
If a telephone number, fax number, address and e-mail address exist, they must be stated in the withdrawal policy
The Higher Regional Court of Hamm (decision of 24.03.2015, ref.: I-4 U 30/15) disagrees with the store operator. Rather, the term “availability” in the model withdrawal policy means that the data must generally be stated. There is only an exception if these do not (yet) exist. However, the store operator’s legal notice showed that the data did exist in this case. It contained all the information missing from the instructions:
The defendant in the injunction cannot claim that it does not have an employee assigned or available to process revocation declarations by telephone. Since, according to its legal notice, it maintains a business telephone line, it must also accept declarations of revocation communicated by telephone via this line. It cannot “block” this telephone line for the receipt of revocation declarations.
Incomplete withdrawal policy without telephone number constitutes a breach of competition law
Since the changes to the right of withdrawal in 2014, failure to state the telephone number in the withdrawal policy is considered a breach of competition law. The reason for this is the possibility of an informal declaration of withdrawal. In addition to verbal transmission, a declaration by fax or email is also possible. However, if the data required for this is not published, the revoking party is denied these options.
Relief for the consumer
Although the rules on the inclusion of telephone number, fax number and email address are not clearly defined by the legal wording, it can be assumed that the legislator only sees a complete and correct revocation instruction if this information is provided.
Ultimately, the new version of the right of withdrawal was intended to make things easier for the consumer. In the opinion of the court, it is therefore in the interest of the legislator that the telephone number, fax number and email address are specified for the new simplified form of withdrawal declaration.
