Online ordering process: the devil is in the detail!

A quick reminder: the applicable legal framework, a Prévert-style inventory

The texts that regulate e-commerce are abundant:

It is up to the lawyer to guide within this textual jungle the project managers wishing to set up online order subscription processes but, if knowledge of the law is essential, current case law must also be studied to frame the process. A few examples demonstrate this.

How do I know when I am financially committed?

Who has never booked a hotel through an online platform in order to simplify the laborious task of organizing their holidays? This is an increasingly common use for consumers due to its practical and spontaneous aspects. Moreover, the use of these platforms by their users turns out to be without great difficulty. In short, everything is done to make our lives easier. Only, when do you commit to paying for your selected hotel room? More specifically, under what circumstances is the consumer obliged to reimburse the costs of a potential cancellation? The answer was given by the CJEU, April 7, 2022.

A German company and owner of a hotel rents its rooms in particular through the famous Booking website (online accommodation reservation platform). By visiting said site, a consumer finds the hotel of his choice in the results displayed and clicks on the image to access the photos of the available rooms and additional information (equipment, price, etc.). Having decided to reserve four rooms there, the potential customer clicks on the “I reserve” button, then fills in his personal details and the names of the people accompanying him. Finally, he clicks on the button marked “finalize the reservation”.

However, on D-Day, the client did not show up at the hotel. In accordance with its terms and conditions, the company charged him a cancellation fee setting a deadline to settle the amount but no refund was made. The company therefore seized the court to obtain the sum owed by its client. The court then asked the CJEU: “to determine whether a formula entered on the order button such as the formula ‘finalize the reservation’, is ‘similar’ to the mention ‘order with obligation to pay’, must one rely solely on the mention appearing on this button or, also take into account the circumstances surrounding the ordering process?”. The CJEU provides a clear answer with regard to the Directive 2011/83.

It recalls the obligations incumbent on the professional in the context of contracts concluded at a distance by electronic means and by means of an order process with payment obligation for the consumer. As such, the professional must first provide said consumer the essential information relating to the contract, then, explicitly informing him that the placing of the order generates a payment obligation.

Furthermore, “the control button or similar function must bear a mention easily legible and unambiguous stating that placing the order obliges the consumer to pay the trader”. However, Member States are authorized to offer traders the possibility of using another similar formula when it is unambiguous as to the origin of the payment obligation. Failing this, the consumer not being expressly informed of his obligation, he will not have to reimburse the sum claimed by the company that owns the hotel.

Professionals must therefore be vigilant as to the proof of “financial consent”, judges and authorities in charge of the repression of fraud are indeed particularly concerned that the consumer has not been hired without knowing it. The right information at the right time. No more no less !

How should I receive my pre-contractual information?

Often e-commerce sites consider that pre-contractual information must be presented without any action on the part of the consumer, and in particular without the latter having to click on a hypertext link.

Believing that this was the case, the DGCCRF had ordered the companies Cdiscount and Nature & Découverte to deliver the pre-contractual information to the consumer directly and no longer by hyperlinks, as they had done until then. But, by two judgments of the TA Bordeaux of November 23, 2021 and the TA of Versailles of November 22, 2021, these two injunction decisions were canceled.

The DGCCRF should have checked “if the fact of making this information available through a hyperlink could not be regarded as a means adapted to the remote communication technique used […]allows access to information in a clear and understandable language”. Moreover, the administration could not base its decision on establishing a parallel with the provisions requiring a direct written confirmation of information after conclusion of the distance contract (CJEU, 5 July 2012).

The pre-contractual information would therefore escape this requirement of receipt on a durable medium of the documents on which it is committed. However, it should be noted that there is no indication that a court of law can reach the same conclusions. This case law, although interesting, should therefore be put into perspective and followed in its development.

An online ordering process is therefore by definition constantly evolving. A regular review of it is therefore to be expected to avoid potential disputes on the one hand but also to possibly simplify it…

Marie M. Capriolilawyer, doctoral student and Pascal Agostiassociate lawyer, doctor of law
Caprioli & Associés, law firm member of the JurisDéfi network

Expert opinions are published under the full responsibility of their authors and in no way engage the editorial staff.