German E-Commerce Law: “Button Solution” To Come into Force in August 2012

In March 2012 the German Federal Legislator adopted several comsumer protection statutes that will have considerable impact on B2C e- and m-commerce business activities in Germany, implementing, in particular, Art. 8 (2) of Directive 2011/83/EU. The new law applies to any contractural transaction that is entered into via electronic means of communication and leads to payment obligations for the consumer, i.e. any purchase of a book in an online shop, any subscription of content services made as an in app purchase, as well as any other such contract unless it is free of charge.

In legal terms, e-commerce contracts will only come into force if, before making an order, the consumer has been notified by the seller in clearly visible form of the total costs involved, and the consumer has confirmed acknowledgement of this information by means of a separate declaration. Specifically, the “button solution” as specified in the relevant statutory provisions requires the seller/service provider

  • to include an obligatory “confirmation slot” (for lack of a better translation) to the effect that the button that triggers the consumer’s order must display  “zahlungspflichtig bestellen” (the “order with obligation to pay” of Art. 8 (2) of the Directive) or a closely similar warning message; and
  • to (one more time) provide information that clearly specifies the features of the product, the minimum term of a subscription (if any), the purchase price or the subscription fee as well as any further costs and surcharges.

In case the provider fails to cmply with just one of these requirements, the contract wit the consumser never comes into existence, and the consumer is not obliged to pay for the service or the product.

The respective Act has now been published in the German Federal Gazette. The new law will come into force on August 1, 2012. On or before that day, shop operators, app providers and everyone else to whom the new lay applies must have implemented the new consumer protection functions. Otherwise, they run the risk that their contracts are null and void. In addition, competitors who have taken the necessary steps may ssert claims for unfair competition.

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