OLG Munich, judgment of 31.01.2019 – 29 U 1582/18

In e-commerce, entrepreneurs are obliged, among other things, to provide consumers with the essential characteristics of the goods offered in a clear and comprehensible manner.

Tenor

I. The defendant’s appeal against the judgment of the Regional Court of Munich I dated April 4, 2018 is dismissed.

II. Orders the defendant to pay the costs of the appeal proceedings.

III. this judgment and the judgment of the Regional Court are provisionally enforceable. The defendant may avert the enforcement of item I. of the regional court judgment by providing security in the amount of € 25,000.00, unless the plaintiff provides security in the same amount prior to enforcement. With regard to the costs, the defendant may avert enforcement by providing security amounting to 115% of the enforceable amount, unless the plaintiff provides security amounting to 115% of the amount to be enforced prior to enforcement.

Facts of the case

I.

1

The plaintiff is asserting claims for injunctive relief under competition law against the defendant.

2

The plaintiff is a registered association for the promotion of the commercial interests of its members.

3

The defendant is an online trading company based in Luxembourg with a branch in Germany.

4

The defendant offered the product “Schneider parasol Rhodos, natural, approx. 300 × 300 cm 8-piece, square” in its German-language online store at www…de. On the product detail page (Annex K 2), the customer received a wealth of information about this product. If the customer placed the product in the digital shopping cart using the “add to cart” button, only a photo of the product, the product name and the price appeared (Annex K 3). The products in the digital shopping cart were each linked to the corresponding product detail page. By clicking on the “Proceed to checkout” button, the customer was taken to the order completion page, where he could submit an offer to conclude a purchase contract and complete the order process by clicking on the “Buy now” button. In addition to the image of a product photo, the order completion page only contained the following product details (see Annex K 4):

Schneider parasol Rhodos, natural

approx. 300 × 300 cm 8-piece, square

EUR 328.99

Quantity: 1 Change

Sale by … EU S.à r.l.

Gift options

5

There was no link to the product detail page.

6

Furthermore, the defendant marketed the product “Opus Damen Kleid Weria” on www…de for which numerous information was available on the product detail page (Annex K 10). After adding the product to the shopping cart, only “OPUS Women’s Dress Weria, Blue (Sea Ground 6050), 44” was visible as product information (Exhibit K 11); a link took the user back to the product detail page. When clicking on the “Proceed to checkout” button, only this product information was visible (Annex K 12). There was no link to the product detail page.

7

The plaintiff is of the opinion that the defendant is obliged pursuant to Section 312 j para. 2 BGB to provide the consumer, immediately before he places his order, with clear and comprehensible information in accordance with Art. 246 a § 1 para. 1 sentence 1 no. 1 EGBGB and thus the essential characteristics of the goods. The essential characteristics of a parasol include the material of the fabric and the frame as well as the weight; the essential characteristics of a dress include the material. The defendant had not fulfilled this obligation.

8

The defendant is of the opinion that it is sufficient if information on the essential characteristics can be accessed via a link. This link does not have to be on the order completion page. It is sufficient if the product information can be accessed via a link from the “digital shopping cart”. The weight of a parasol is also not an essential characteristic of the parasol.

9

The plaintiff amended the motion originally announced in the complaint in a statement dated November 17, 2017. The Regional Court granted the most recent claim in its judgment of 4 April 2018, to whose factual findings reference is made in addition, in its entirety and ruled as follows:

I. The defendant is ordered to pay a fine of up to EUR 250,000.00 for each case of infringement, or alternatively to serve a period of imprisonment of up to six months, the latter to be served on one of its managing directors,

to refrain from

offering parasols and/or items of clothing to consumers in an online store in the course of trade for the purposes of competition without indicating on the website on which the consumer can submit his offer to conclude the purchase contract by clicking on the order button the essential characteristics of the goods to be ordered, in the case of parasols the material of the fabric, the material of the frame and the weight, and in the case of items of clothing the material, if this is done by way of example as shown in Annex K 12. K 12.

II. The defendant is ordered to pay the costs.

III. [vorläufige Vollstreckbarkeit]

IV. [Streitwert]

Appendix K12

10

The defendant appeals against this judgment, repeating and expanding on its submissions at first instance. She requests:

11

The judgment of the Regional Court of Munich I of April 4, 2018, Ref. 33 O 9318/17, is set aside.

12

The action is dismissed.

13

The plaintiff requests,

dismiss the appeal.

14

In all other respects, reference is made to the pleadings and annexes exchanged in the appeal proceedings and to the minutes of the oral hearing of 31.01.2019.

Reasons for the decision

II.

15

The appeal is admissible, but not well-founded.

16

The claims for injunctive relief asserted are in accordance with § 8 para. 1, para. 3 No. 2, § 3, § 3 a UWG in conjunction with. § 312 j Abs. 2 BGB, Art. 246 a § 1 Abs. 1 sentence 1 no. 1 EGBGB.

17

1. the plaintiff is entitled to bring an action pursuant to Section 8 para. 3 No. 2 UWG.

18

2. section 312 j para. 2 BGB serves to protect consumers and is therefore a market conduct rule within the meaning of Section 3a UWG (see Köhler/Bornkamm/Feddersen, UWG, 37th ed. Section 3a para. 1.311).

19

3. according to § 312 j Abs. 2 BGB, in the case of a consumer contract in electronic commerce, the trader is obliged to provide the consumer with, among other things, the information pursuant to Art. 246 a § 1 para. 1 sentence 1 no. 1 EGBGB, i.e. the essential characteristics of the goods, to the extent appropriate for the means of communication and for the goods, immediately before the consumer places his order, clearly and comprehensibly in a highlighted manner.

20

a) The information is only provided immediately before the consumer places their order if the information is on the website on which the customer completes the ordering process, but not if the information can only be accessed via a link or even – as in the present case – only via a link on an upstream website (Palandt-Grüneberg, BGB, 78. BGB, 78th ed. § 312 j para. 7; OLG Hamburg, decision of 13.08.2014, ref. 5 W 14/14, juris, para. 3; see also OLG Cologne NJW-RR 2015, 1453 para. 16). This is unambiguously stated in the explanatory memorandum to the law (BT Drucksache 17/7745 p. 10):

21

The information must be spatially and functionally related to the placement of the order. If – as is usually the case – the order is placed via a button, the information must be displayed in close proximity to the button for the order so that the criterion of immediacy is fulfilled. … Under no circumstances is it sufficient if the information is only accessible via a separate link or can only be taken from a separate downloadable document.

22

Contrary to the opinion of the defendant, it also follows from Directive 2011/83/EU, Art. 8 para. 2 is implemented by § 312 j para. 2 BGB (cf. Palandt-Grüneberg, loc. cit. § 312 j para. 1), that the display of the essential characteristics must take place on the same website on which the order is concluded, so that a suspension of the legal dispute and a referral to the ECJ is not necessary. Art. 8 para. 2 of Directive 2011/83/EU reads as follows:

“Where a distance contract concluded by electronic means obliges the consumer to pay, the trader shall clearly and prominently draw the consumer’s attention, immediately before the consumer places his order, to the information referred to in Article 6(1)(a), (e) and (p). 1 (a), (e) and (p).

In Art. 6 para. 1 a) Directive 2011/83/EU, which was implemented by Art. 246 a § 1 para. 1 sentence 1 no. 1 EGBGB, again mentions the essential characteristics of the goods to the extent appropriate for the means of communication and the goods. Recital 39 of Directive 2011/83/EU states with regard to the place of display:

It is important to ensure that consumers are able to fully read and understand the main elements of the contract before placing their order in the case of distance contracts concluded via websites. To that end, this Directive should ensure that those elements of the contract are displayed in close proximity to the confirmation required for the submission of the order.

According to Directive 2011/83/EU, which is implemented by Section 312 j para. 2 of the German Civil Code (BGB), the information to be provided immediately before the order is placed should therefore be displayed in the immediate vicinity of the order button, which is not the case with a mere link.”

23

The fact that the mere link to the essential characteristics of the goods stated on another website does not meet the requirements of Section 312 j para. 2 BGB is also evident from the fact that the information obligations with regard to the information pursuant to Art. 246 a § 1 para. 1 sentence 1 no. 1 EGBGB with the information obligations with regard to the information pursuant to Art. 246 a § 1 para. 1 sentence 1 nos. 4, 5 (total price) and nos. 11 and 12 (duration of the contract, minimum duration of the obligations) are identical. The fact that a mere link to the total price information, the term of the contract and the minimum duration of the contractual obligations in the vicinity of the order button should be sufficient is far-fetched for reasons of consumer protection, which the regulations serve. For reasons of better clarity for larger orders – de lege ferenda – it may be possible to consider a link to other pages near the order button to be sufficient with regard to the essential characteristics of the goods and services. De lege lata, this does not meet the requirements.

24

b) The material of the fabric, the material of the frame and the weight of parasols as well as the material of clothing are also essential characteristics of the goods within the meaning of Art. 246 a § 1 para. 1 sentence 1 no. 1 EGBGB, which is also not questioned by the defendant with regard to the material of the fabric and the frame of parasols and the material of clothing (cf. also OLG Cologne, BeckRS 2016, 119172, para. 39; OLG Hamm, decision of 14.03.2017, ref. 4 W 34/16, 4 W 35/16, juris, there para. 19 – shopping basket view; OLG Hamburg, decision of 13.08.2014, ref. 5 W 14/14, juris, there para. 7).

25

With regard to the content and scope of the information to be provided in accordance with Art. 246 a § 1 para. 1 sentence 1 no. 1 EGBGB depends on the specific goods. The decisive factor is a description from which the consumer can infer the characteristics relevant to his decision (BT-Drucksache 17/12637 p. 74). Since the transportability of the parasol is of decisive importance for the consumer and this in turn depends on its weight, the weight is also an essential characteristic of a parasol that must be listed (see OLG Hamburg loc. cit. para. 7; a.A. OLG Hamm a.a.O. para. 19 – shopping cart view).

26

c) The infringement is also likely to significantly impair the interests of consumers within the meaning of Section 3a UWG.

III.

On the ancillary decisions:

1. the decision on the costs of the appeal proceedings is based on section 97 para. 1 ZPO. The decision on costs at first instance did not need to be amended. As the Regional Court correctly stated, it was clear from the plaintiff’s submission that he did not initially seek a ban on all goods, but only on parasols and clothing, so that the new version of the application was merely a clarification and not a partial withdrawal of the action.

2 The decision on provisional enforceability is based on Section 708 No. 10, Section 711 ZPO.

3. the appeal was not permitted. The case is not of fundamental importance (Section 543 (2) sentence 1 no. 1 ZPO) and the requirements of Section 543 (2) sentence 1 no. 2 ZPO are also not met. 2 sentence 1 no. 2 ZPO are not present. There is no divergence from the decision of the Higher Regional Court of Hamm (loc. cit. – shopping basket view), as the divergent assessment regarding the indication of the weight of parasols is not based on different legal principles (see BGH NJW-RR 2007, 1676).

Contact person

Free newsletter

Matching contributions

Search

Request