Contract by electronic means: to be able to be validly bound by such a contract, the consumer must understand without ambiguity from the only mention appearing on the order button that he will be obliged to pay as soon as he clicks on this button.
Fuhrmann-2 is a company under German law which owns the Goldener Anker hotel in Krummhörn-Greetsiel (Germany). The rooms of this hotel can be rented, in particular, via the website www.booking.com, an online accommodation reservation platform. On July 19, 2018, B., a consumer, visited this website to search for hotel rooms in Krummhörn-Greetsiel for the period from May 28 to June 2, 2019. Among the search results displayed were rooms in the Hotel Goldener Anker.
B. then clicked on the image corresponding to this hotel, which resulted in the display of the available rooms as well as additional information relating, in particular, to the facilities and prices offered by the said hotel for the chosen period. Having decided to reserve four double rooms there, B., after clicking on the “I reserve” button, filled in his personal details as well as the names of the people accompanying him before clicking on a button bearing the words “Finalize the reservation “. B. did not show up at the Goldener Anker Hotel on May 28, 2019.
Fuhrmann-2 has, in accordance with its general terms and conditions, invoiced B. a cancellation fee of 2,240 euros, giving it a period of five working days to settle this amount. B. has not paid the sum claimed. Fuhrmann-2 therefore seized the district court of Bottrop (Germany) for the recovery of this sum.
The question asked
That court asks the Court of Justice whether, in the context of an order process relating to the conclusion of a distance contract by electronic means, to determine whether a formula entered on the order button or on a similar function, such as the formula “finalize the reservation”, is “similar” to the mention “order with payment obligation”, it is advisable to base oneself on the only mention appearing on this button or if it is also necessary to take into account the circumstances surrounding the ordering process.
In its judgment delivered today, the Court recalls that, according to Directive 2011/83 1, where a distance contract is concluded electronically by means of an order process and is accompanied by an obligation to pay for the consumer, the professional must, on the one hand, provide this consumer, directly before placing the order, with the essential information relating to the contract and, on the other hand, explicitly inform the said consumer that, by placing the order, this latter is bound by an obligation to pay.
With regard to the latter obligation, it follows from the wording of Directive 2011/83 that the control button or similar function must bear an easily readable and unambiguous statement indicating that placing the order obliges the consumer to pay the professional. Although the directive mentions the formula “order with obligation to pay”, it also emerges from the wording of the latter that the latter formula is of an illustrative nature and that the Member States are authorized to allow the professional to use any other analogous formula, provided that it is unambiguous as to the birth of this obligation.
Therefore, in the event that, as in the present case, national legislation aimed at transposing Directive 2011/83 does not contain, like that directive itself, specific examples of analogous formulas, the professionals are free to use any wording of their choice, provided that it is clear from this wording that the consumer is bound by a payment obligation as soon as he activates the order button or similar function.
The Court adds that it is just as clear from the wording of Directive 2011/83 that it is the button or similar function which must include such a wording, so that only the statement appearing on that button or similar function must be taken into account to determine whether the trader has fulfilled his obligation to ensure that the consumer, when placing his order, explicitly acknowledges that this involves an obligation to pay.
The commented judgment should not pose any particular difficulties in all cases where the commitment is simple. When a ‘shopping cart’ is filled and the shopper virtually checks out with a ‘pay’ or ‘order’ button, it will usually be simple to create a seamless environment that allows for the objective that the Court assigns to the seller.
Things are trickier when the engagement itself is complex. How to make simple during the confirmation, a commitment which can sometimes contain “if” and “perhaps” whose realization can give rise to a payment obligation or modify the amount to be paid? It is not for nothing that the dispute arose with Booking, because the hotel industry is a sector in which commitments can be complex (the flip side of flexibility).
The Court’s response is nuanced: “Under these conditions, the referring court will have to verify in particular whether the term ‘reservation’ is, in German, both in everyday language and in the minds of the average consumer, normally informed and reasonably observant and circumspect, necessarily and consistently associated with the inception of a payment obligation. If not, it will be up to him to note the ambiguous nature of the expression “finalize the reservation”, so that this expression cannot be considered as being a formula similar to the words “order with payment obligation”, referred to by Directive 2011/83. »
Is the objective assigned by the Court difficult to achieve?
Honestly yes, sometimes. However, the Court is inflexible, emphasizing that “if the Court has ruled that, in the interpretation of the provisions of Directive 2011/83, it is necessary to ensure, as stated in recital 4 of this directive, a fair balance between a high level of consumer protection and the competitiveness of businesses, while respecting the freedom of enterprise of the entrepreneur as enshrined in Article 16 of the Charter of Fundamental Rights (see, to this effect, judgment of 10 July 2019, Amazon EU, C‑649/17, EU:C:2019:576, paragraph 44 and the case-law cited), it should be noted that such a balancing exercise is not relevant in the occurrence, given that the drafting or modification of a statement appearing on a button or an electronic control function does not involve any significant charge likely to harm the competitiveness or the freedom of enterprise of the professionals concerned. »
The dispute will also probably strain the relationship between the seller and the intermediary (market place or booking intermediary): the first risks losing money due to an inappropriate presentation which falls within the sphere of control of the second. .
More informations ?
The judgment is available in the appendix (C-249/21).
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Is a “I pay” button mandatory on e-commerce sites? – Law & Technology