ECJ: Order Buttons Must Indicate Payment Obligation

Jun 21, 2024 Benn-Ibler Rechtsanwälte

Order buttons must be absolutely clear in their function. According to the European Court of Justice (ECJ), this means that an order button must indicate that by clicking it, a payment obligation is being created.

In the case at hand, a Berlin-based debt-recovery firm offers tenants the opportunity to assign their claims in the event of breaches of the rent cap and to enforce the tenants’ existing claims against landlords. In order to conclude such a contract on the company’s website, tenants must accept the general terms and conditions where it is stated that the contract is subject to a fee, and then click on a button labelled ‘Order rent reduction’, so as to place the order. The tenants then sign a form called ‘Confirmation, Authorisation and Assignment, Consent,’ which contains no information about any payment obligation on the tenant’s part.

In 2021, the collection agency asserted a right of recourse against a landlord, who appealed against the judgment arguing that the relevant contract between the tenant and the debt collection agency was void for breach of Section 312j (3) of the German Civil Code (hereinafter Bürgerliches Gesetzbuch, BGB) and that there was no legal assignment of claims.

Therefore, the court had to decide whether the requirement laid down in Art. 8(2) of Directive 2011/83 in conjunction with Sections 312j(3) and (4) of the BGB that order buttons must contain an express reference to a payment obligation associated with the order, or a similar wording, also applies to the case at hand.

The ECJ ruled as follows:

The fundamental question was whether the requirements were at all applicable in the present case since, according to the general terms and conditions of the service provider, a commission was only due if the claims assigned to the provider were successfully enforced. At the time the button was pressed, therefore, it was still unclear whether the tenant would be obliged to pay at all. This differs from classic order buttons, which, when pressed, result in a valid sales contract with a clear obligation to pay. Still, the ECJ ruled that this also applies to the present case, similar to traditional order buttons that clearly indicate that the consumer assumes an obligation to pay.

As to whether the labelling of the button complies with the Regulation, the ECJ did not rule. This is a matter that will have to be clarified by the national court.

ECJ C-400/22 (30 May 2024)