An online retailer had not referred to the EU’s online dispute resolution platform – the so-called ODR platform – in its eBay store. The warning issued by the IDO was lawful in the opinion of the Munich Higher Regional Court in its ruling of September 22, 2016 (Ref.: 29 U 2498/16). The online retailer had violated Art. 14 Para. 1 sentence 1 of the ODR Regulation.
But the judgment of the Munich Higher Regional Court goes further. The online retailer must not only link to the ODR platform in its eBay online store, but also in its respective listings. The reason for this is to ensure that as many consumers as possible learn about the dispute resolution platform and their options as consumers.
IDO authorized to sue as an interest group
The IDO is an “interest group for the legal and financial consulting of German online companies”. The association is also authorized in accordance with § 8 Abs. 3 No. 2 UWG, the association is also authorized to warn or sue companies that act unlawfully.
It is one of the associations with legal capacity to promote commercial or independent professional interests. This is because it includes a significant number of entrepreneurs who sell goods or services of the same or a related type on the same market.
New regulation – new warnings
Unfortunately, many online retailers often fail to comply with the legal changes in good time. This is also the case for links to the ODR platforms. The relevant regulations on referring to the ODR platform have been in force since January 2016 (we reported).
If a reference is missing or the link is incorrect, the online retailer can be effectively warned. The reason for this is that the infringement of the naming and linking of the platform constitutes an infringement of competition law (Section 3a UWG). According to previous case law, this is to be regarded as both noticeable and significant within the meaning of competition law due to the high relevance of the arbitration platform. Without the reference, the ODR platform would remain little known. This in turn would impair the function of promoting online dispute resolution, which serves the interests of consumers.
Link to the ODR platform must be “clickable”
In passing, the OLG mentions that the link must not only be mentioned, but must also be clickable in order to direct the consumer directly to the page of the OS platforms.
[…] because it includes not only an obligation to inform consumers, but also an obligation to provide a link and thus goes beyond merely informing consumers about the internet address of the ODR platform.
This is also supported by a decision of the Frankfurt Regional Court dated March 13, 2017 (Ref.: 3-10 O 34/17). It also mentions that the link must be easily accessible and clickable . Such an interpretation of the relevant Art. 14 of the relevant Regulation (EU) No. 524/2013 of the European Parliament and of the Council – which refers to “[…] provide a link to the ODR platform on their websites” – seems reasonable.
Competitors should control each other
Unlike in other European countries, there is no “supervisory authority for unfair competition” in Germany. When the UWG was created, the legislator fully expected competitors to monitor each other. This also includes the sometimes mass warnings that are sent out, particularly with regard to the sometimes very comprehensive legal notice.
Warning letter as a reason to review the online store
A warning letter is always annoying. But if you react correctly, you can get off lightly. However, a warning should always be taken as an opportunity to have your own online presence checked for legality. Regular checks and monitoring new legal regulations can regularly prevent warnings.