ECJ on the "order with obligation to pay" button

Apr 29, 2022 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) has decided that, for the purpose of determining whether, when concluding a distance contract by electronic means, a phrase used on the order button corresponds to the words "order with obligation to pay", solely the words on that button are relevant.

According to Article 8 para 2 subpara 2, sentence 2, of Directive 2011/83/EU ("Consumer Rights Directive"), when concluding an electronic distance contract, the "button or similar function – the activation of which forms part of the ordering process of a distance contract to be concluded by electronic means within the meaning of the first subparagraph of that provision and which is not labelled with the words ‘order with obligation to pay’ – is labelled with a corresponding unambiguous formulation within the meaning of that provision, indicating that placing the order entails an obligation to pay the trader". In Germany, this obligation was implemented in Section 312j para 3 sentence 2 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).

In the initial case, a consumer had reserved a hotel room on booking.com. The button at the end of the booking process bore the inscription "Complete booking". As he did not show up at the hotel, the hotel charged him cancellation fees of EUR 2,240.

The referring court in Germany stayed the proceedings and referred them to the ECJ for a preliminary ruling. The success of the action depended on whether the obligation under Sec. 312j para 3 sentence 2 BGB had been complied with. It had doubts as to whether the assessment also depended on the overall circumstances or exclusively on the content of the button.

According to the ECJ, the latter is the case. Because in connection with the term "expressly" Article 8 para 2 subpara 2 sentence 1 of the Consumer Rights Directive, it was clear that it was this button that had to be marked with the intended wording. This is also in line with the purpose of the Directive, namely to ensure a high level of consumer protection.

EuGH C-249/21 (07.04.2022)