Online-shops that officially trade as B2B-shops must comply with European consumer protection regulations or make actually sure that only business customers can place orders in the shop. In order to ensure that consumers do not use the shop, it is not sufficient to provide the respective disclaimer on the website. That was recently ruled by the Regional Court in Dortmund.
The defendant in the case in question was operating a website for cooking recipes. The website contained a few disclaimers stating that the use of the website was only allowed for entrepreneurs according to section 14 of the German Civil Code (“BGB”). Section 14 BGB defines entrepreneurs as “a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.” This information was only visible when scrolling down a bit.
Using the website and its recipe archive was only possible after registering and against payment. During the registration process, users had to provide personal information such as name, address, email etc. It was not mandatory to fill in a firm or company name. When accepting the terms and conditions of the site via a button, the user also confirmed that he was using the website as an entrepreneur. If this confirmation was not given, the user was reminded to accept the terms and conditions, but not to confirm that he is an entrepreneur. The rest of the website looked like a normal cooking-/recipe-website designed also for private use.
The claimaint in the case was an organization for consumer protection. The organization claimed that even though there were disclaimers on the website, the site was designed to be used by customers and therefore, mandatory information such as a cancellation policy was missing.
According to the Regional Court in Dortmund (“LG”), the disclaimers described above were indeed not sufficient to exclude consumers from using the service, even more so, since consumers were obviously in fact using it. The court stated in its ruling, that while it is of course possible to restrict (online-) offers to entrepreneurs within the meaning of section 14, such restriction was only relevant for the application of European consumer protection law, if sufficient measurements were taken, such as a clearly visible disclaimer on the landing page and mandatory information about the firm or company the customer is representing.
Therefore, the operator of the website had to comply with European consumer protection law. Because he did not do so, he was behaving in an unlawful manner.