It‘s easy to be a unfair competition law violator in Germany. Just operate an eBay shop or deal on Amazon’s market place and use their default settings when informing your customers on how long it will take to get the goods delivered to their homes. In all seriousness, that is what the Bremen Court of Appeals has effectively decided in a judgment in early October.
Essentially, the defendant had informed his customers on the delivery time by saying: “Expected delivery time: 1 – 3 working days”. “1 – 3 days”, that’s quite reasonable! one might say given that no man on earth can predict how long a parcel will take in the mail. Well, not so fast! Section 308 No. 1 of the German Civil Code indeed says for standard contractual clauses (which is what we are dealing with, says the court), that
“a clause by which the user [of the clause] reserves to himself the right to unreasonably long or insufficiently specific periods of time for acceptance or rejection of an offer or for rendering performance [is invalid].”
And, as you might have guessed, an expected 1 to 3 days is “insufficiently specific”, says the court. “1 to 3 days” is, after all, bad enough. But add the “expected” and you are dealing, says the court, with a consumer who has no proper idea of when to be allowed to expect delivery. And if that is not possible, how should the consumer be able to assert his rights for late delivery? Nitpicking, it may sound like, but we all agree that consumer protection is the highest good in the EU right? To wrap things up, using invalid standard terms in your dealings with consumers almost always at the same time constitutes a violation of German unfair competition law. There you go.
At this point one might ask: Why, given that it is impossible to predict how long a parcel will take to arrive, would anyone take the risk of saying anything about delivery times? Well, you are obliged to inform your customers on the delivery times under the German distance selling regulations which, in turn, are of course EU law based. You really cannot win, can you? You don’t inform, you’re screwed; you do inform, you’re screwed as well.
From a lawyer’s perspective the best thing you could objectively advise your clients to do is to choose a reasonable amount of working days and state the respective number of days as your precise delivery time. You might be a day or two late in some cases. But the clause as such is fine.
But fear not, actually! It’s much easier! Because, says the Bremen Court of Appeals, whereas, of course, the clause
“Expected delivery time: 1 – 3 working days”
is obviously insufficiently specific, the clause
“Delivery time: Approximately 3 days”
Is absolutely sufficiently specific. You fail to see the difference? That is only because you are not applying the degree of differentiation that it takes to tell a breach of unfair competition law from a perfectly valid way to inform your customers. “Approximately” allows the customer to sufficiently narrow down the expected delivery time by +/- 1 to 2 days. If, on the other hand, a delivery time is only “expected” to amount to a certain range of days, then that shows that the seller is only applying a subjective assumption on how long it will take – which may or may not be correct. Says the court. You can surely see the difference now!
We are able to report on the case only because we are not the poor sods who lost it. I know how you feel, though, mate!