As of June 13th, 2014 the new rules for consumer protection – laid down in EU-Directive 2011/83/EU – will be implemented in the German Civil Code (BGB) and the Introductory Act to the Civil Code.
These new rules mainly effect the so called long-distance transactions. This term refers especially to online-purchase, but also to telemarketing, catalogue selling and other kinds of businesses, where contracts are entered between consumer and entrepreneur solely by the use of means of distance communication.
As in Germany the laws of unfair competition are quite strict, competitors may be focussed in the first days after the implementations become effective on sending warning letters to their respective competitors. Therefore, it is highly advisable for all market players to adapt the new rules in their shops.
In the following, we will give a brief overview of the main adjustments and how those could be implemented.
1. The 14-day-revocation period
As the consumer protection Directive 97/7/EC did only state a minimum period of 7 working days for the consumer to revoke the contract, the new Directive has harmonisation to a 14-days period to revoke.
Since the German Civil Code has had a 14-days period from the very beginning, there will not be any changes for German entrepreneurs in this field.
2. The way to revoke
Until June 13th, 2014 it was possible for consumers to revoke any long-distance transactions just by returning the goods.
This will not be possible anymore. The amended law states that the consumer shall inform the trader of his decision to withdraw from the contract. Therefore, this information may be conducted by using the model form as annexed to the Introductory Act to the Civil Code or by any other means, such as a phone call. However, the burden of proof will be on the consumer.
How traders will handle situations, where consumers have just returned the goods, without having exercised their right to withdraw beforehand, will be left to the traders and their “good will”.
Further, the trader will have to inform consumers of their right to revoke and the fact that they may use a form to exercise said right. This form is also attached to the Introductory Act of the Civil Code and must be made available by the traders, however consumer are not obliged to use it.
3. Obligations of the traders
The amendments also change the obligations of the trader in regard to reimbursing the costs of shipments. Where traders had to reimburse all costs whatsoever, especially charges for supplemtary shipments, in the case of revocation the new law will change this rule.
As of June 13th, 2014 the traders have to reimburse the costs for the least expensive shipment. If the consumer has expressively asked for a shipment with extra charge, those additional costs will not be reimbursed.
The time to reimburse the consumer is then only 14 days and the trader shall use the same means of payment as the consumer used beforehand. How a C.O.D. Service will then be reimbursed is probably an open question.
4. Cost for returning
As the German Legislation had a so-called 40 EUR-Rule, under which the costs for returning the goods had to be paid by the consumer for goods with a value less than 40 EUR, the costs will now always be paid by the consumer revoking the contract.
That means all consumers will have to pay the costs for the shipment to the trader, unless the trader has agreed to return the goods on his costs or offered to collect the goods himself.
If the good are not to be shipped by postal services, the trader will also have to indicate beforehand, which costs may occur when returning the goods. How and if that will be possible, especially in regard to “white goods”, is questionable.
Those are some of the new implementations to German legislation. For certain business areas further rules may apply and an amended withdrawal form is to be used. However, those circumstances must be observed in the individual case and may only be handled then.
If you need further assistance in regard to consumer protection, revocation of contracts or your online and long-distance transaction business, NACHTWEY IP will be the law firm in Germany to assist you and find the legal way to do business.
Author: Felix Seehausen, LL.M.