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The EU Consumer Rights Directive requires that when placing an online order, the consumer must explicitly acknowledge that the order is an undertaking to pay. The same Directive states that the phrase "order committing to pay" should be understood by the consumer to imply his obligation without further ado. But what if the seller has named the relevant button in the online purchase process differently? For example, 'booking' or 'buy now'?
Let's imagine a specific situation. A customer bought accommodation in a hotel through booking.com by clicking on the "Book now" button after looking at the pictures and choosing the type of room and the number of nights, then entering his personal details and the names of the people who will accompany him, and then clicking on the "Complete booking" button. The customer did not show up for the accommodation. The hotel charged him a cancellation fee, which the customer did not pay, and the dispute was over. This is exactly what happened in Germany, and the German court did not know how to deal with this seemingly trivial dispute from the point of view of the online retailer, because the Consumer Protection Directive refers to an 'order committing to payment', not a 'reservation'. The CJEU had to intervene and the judgment can now be traced as C-249/21 Fuhrmann-2-GmbH.
According to the Court of Justice's judgment, the phrase "order binding payment" is given as an example in the Directive. Therefore, other terms may be used. However, it must be worded in such a way as to draw attention to the fact that the placing of the order creates an obligation on the consumer to pay the trader; otherwise, the consumer is not bound by the contract or the order. The wording must be absolutely unambiguous to the consumer. The consumer must be able to understand his obligation from the wording alone without the need to consider further context.
As the CJEU is not familiar with the characteristics of the German consumer, it instructed the German court to determine for itself whether the term "reservation" in the German language, both in common parlance and in the mind of the average consumer, is necessarily and systematically associated with the creation of an obligation to pay. If the German court answers the question in the affirmative, the online retailer wins the dispute. Otherwise, the consumer will prevail and German retailers will rename their buttons profusely.
What is the lesson for Czech online retailers? The Czech court has not yet dealt with the same dispute. However, the same EU Directive applies to the Czech Republic, and therefore the Czech court would have an identical task: to determine whether the wording "reservation" in common language and in the mind of the average Czech consumer is necessarily associated with the creation of an obligation to pay. In fact, we are not sure of the answer, which is why we have been recommending for years that all online retailers resort to the bulletproof term "order binding payment". In response to the Fuhrmann-2 judgment, we must underline our recommendation!
Do you want to check your online shopping process in the light of consumer and other legislation? Contact us.
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Martin Herna
Martin Herna
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