What had happened?
A large German electronics store chain had offered a mobile phone on its website and provided the following information during the ordering process:
The article will be available soon. Get yours now!
The consumer association Verbraucherzentrale NRW had taken action against this, arguing that the offer was contrary to consumer protection law, since this wording did not provide the consumer with all the information needed to make a reasonable decision on the conclusion of the contract. The consumer would already be committed to paying, but ultimately not know when delivery is to be expected.
The Regional Court of Munich had already ruled in favour of the consumer group (docket no. 33 O 20488/16). This judgement has now been confirmed by the Higher Regional Court of Munich. According to press reports, the defendant will not appeal the decision, which will therefore become final.
Legal background
The basis of the consumer group’s cease and desist claims are statutory provisions on information obligations in consumer contracts in e-commerce (§ 312d Para. 1 S. 1 German Civil Code, Art. 246a § 1 Para. 1 S. 1 No. 7 Introductory Act to the German Civil Code). According to these provisions, which implement the EU Consumer Rights Directive and therefore have equivalents in all EU Member States, the trader must provide the consumer with information on, among other things, terms of payment, delivery and payment, as well as information on the date of delivery of goods or provision of services by the trader. Such information is needed that can influence the decision of an average and reasonable consumer.
The decision
According to the Higher Regional Court of Munich, the defendant did not comply with this requirement with the provided information. The consumer could not determine the (latest) delivery date on the basis of the notice, since it remained open whether the article could be available and delivered in a matter of days, weeks or months. Although every average consumer has an idea of what “soon” means, this is still not a definable delivery date; in addition, this wording is not sufficiently clear and transparent from the consumer’s point of view.