According to the Higher Regional Court of Brandenburg, an eBay trader does not have to provide a clickable link to the ODR platform in its listings (Ref.: 6 U 60/17). The OLG Brandenburg thus agrees with the OLG Dresden and LG Cottbus.
Disagreement between various higher regional courts
However, the legal situation is assessed differently by the higher regional courts in Hamm, Koblenz and Munich. They consider all eBay traders to be obliged to refer to the ODR platform in their advertisements and to link to it appropriately.
Obligation to refer to ODR platform has existed since the beginning of 2016
Since the beginning of 2016, online retailers have been obliged to refer to and link to the online dispute resolution platform (ODR platform) on their websites. The obligation arises primarily from the so-called ODR Regulation (“online dispute resolution”). However, it is not directly clear from this regulation whether the obligation only applies to the platform operator (Amazon, eBay, etc.) or also to each individual retailer.
Obligation to provide information according to the OLG Hamm, Koblenz and Munich
Case law has not yet reached a uniform conclusion. The Higher Regional Courts of Hamm (decision of August 3, 2017 – 4 U 50/17), Koblenz (decision of January 25, 2017 – 9 W 426/16), Munich (decision of September 22, 2016 – 29 U 2498/169) and Hamburg (decision of April 26, 2018 – 3 W 39/18) are of the opinion that every eBay trader must also refer to the ODR platform themselves. The main argument put forward is consumer protection.
OLG Dresden: eBay traders do not have to link to OS platform themselves
The Higher Regional Court of Dresden (judgment of January 17, 2017 – 14 U 1426/16) takes a different view. Only the platform operator is obliged to refer to the dispute resolution platform by means of a clickable link. This is because the EU legislator’s purpose was precisely to oblige the platform operator. However, such an obligation would be superfluous if the individual traders of an online marketplace also had to link to the ODR platform.
OLG Brandenburg follows the OLG Dresden
This view has now been endorsed by the Higher Regional Court of Brandenburg. In the appeal of preliminary injunction proceedings, the Brandenburg judges orally discussed the problem of linking with the parties and made it clear that the court would follow the opinion of the Dresden Higher Regional Court. As a result, the plaintiff withdrew the appeal and is pursuing his claims in the main proceedings before a court in the district of the Higher Regional Court of Hamm – where the case law is known to be different.
Great uncertainty among marketplace traders
The differing views of several higher regional courts are causing considerable uncertainty in the industry. To date, all marketplace traders are advised to link to the ODR platform themselves. This is because the “flying jurisdiction” in online trading makes it possible to take legal action against infringements before a court of one’s choice.