The new information obligations in Sections 36 and 37 of the Consumer Dispute Resolution Act (VSBG) affect all companies that use general terms and conditions and/or operate a website if they employ more than ten people.
Information obligations on the websites and in the GTC
For the trader, it follows from § 36 Para. 1 VSBG that they must inform the consumer of their willingness to participate in a dispute resolution procedure with an appropriate body. This obligation to provide information under the Consumer Dispute Resolution Act even goes so far that not only positive participation must be mentioned, but also non-participation in an out-of-court dispute resolution procedure.
In the event that a dispute resolution procedure before a consumer arbitration board is provided for by the company, the company is subject to further information obligations. The consumer must be provided with additional information about the competent consumer arbitration body – such as the address and website.
Implementation of the information obligations under the Consumer Dispute Resolution Act
The formal requirements for information obligations under the Consumer Dispute Resolution Act are – more or less – precisely defined. The information must be “easily accessible, clear and comprehensible” for the consumer (Section 36 (1) VSBG).
In order to meet the requirements, a short note on the participation or non-participation in the dispute resolution procedures and the additional information on the consumer arbitration boards is sufficient.
It is advisable for website operators to provide the information in the website’s legal notice. This is because the legal notice must also be “easily recognizable, directly accessible and permanently available” (Section 5 (1) TMG).
For inclusion in the General Terms and Conditions, it makes sense to include a further sub-item such as “Dispute resolution procedure before a consumer arbitration board” in order to maintain the clarity of the GTC.
Risk of warning in the event of a breach of the duty to inform
Failure to comply with the duty to provide information under the Consumer Dispute Resolution Act is likely to constitute a breach of competition law. This can result in costly warnings for the entrepreneur.
No obligation to participate in out-of-court dispute resolution proceedings
The Consumer Dispute Resolution Act (VSBG) is the national implementation of the European ADR Directive (2013/11/EU) on alternative dispute resolution in consumer matters. The aim of the law is to ensure that consumers and businesses increasingly settle their disputes in out-of-court procedures such as mediation, conciliation or arbitration.
This is intended to facilitate the enforcement of substantive consumer rights and strengthen the internal market. Even after the amendments to the Consumer Dispute Resolution Act, there is still no legal obligation for all companies to participate in out-of-court dispute resolution.
In the area of e-commerce, traders have been obliged to inform consumers about alternative dispute resolution procedures since January 9, 2016 due to the ODR Regulation. Reference must be made to the ODR platforms by means of a link.