The devil is in the details!

A quick reminder: the applicable legal framework, a Prévert-style inventory

The texts that regulate e-commerce are plentiful:

It is up to the lawyer to guide project managers within this textual jungle who wish to set up online order underwriting processes, but if knowledge of the law is essential, current jurisprudence must also be studied to frame the process. Some examples demonstrate this.

How do I know when I’m financially committed?

Who has never booked a hotel through an online platform to simplify the laborious task of organizing your holiday? This is an increasingly common usage for consumers due to its practical and spontaneous aspects. In addition, the use of these platforms by their users ends up being without great difficulties. In short, everything is done to make our lives easier. Just, when do you commit to pay for the selected hotel room? More specifically, under what circumstances is the consumer obliged to reimburse the costs of a possible cancellation? The answer was given by the ECJ on 7 April 2022.

A German company that owns a hotel rents out its rooms, namely through the famous Booking website (an online accommodation booking platform). When visiting this website, the consumer finds the hotel of his choice in the results displayed and clicks on the image to access photos of available rooms and additional information (equipment, price, etc.). Having decided to book four rooms, the potential customer clicks on the “Book” button and then fills in his personal details and the names of the people accompanying him. Finally, he clicks on the button marked “finalize booking”.

However, on D-Day, the customer did not show up at the hotel. In accordance with its terms and conditions, the company charged a cancellation fee setting a deadline for settlement of the amount, but no refund was made. The company therefore appealed to the court to obtain the amount owed by its customer. The court then asked the ECJ: “to determine whether a formula entered in the order button, such as the formula ‘finalize the reservation’, is ‘similar’ to the mention ‘order with payment obligation’, you must rely only on the statement that appears on this button or, also take into account the circumstances surrounding the application process?”. The CJEU gives a clear answer with regard to Directive 2011/83.

It recalls the obligations incumbent on the trader in the context of contracts concluded at a distance by electronic means and through an order process with an obligation to pay the consumer. As such, the trader must first provide said consumer essential information relating to the contract, then explicitly inform you that placing the order creates an obligation to pay.

Furthermore, “the control button or similar function should be mentioned easily readable and unambiguous declaring that the placing of the order obliges the consumer to pay the merchant”. However, Member States are allowed to offer traders the possibility to use another similar formula when it is not ambiguous as to the origin of the payment obligation. Otherwise, if the consumer is not expressly informed of his obligation, he will not have to reimburse the amount claimed by the company that owns the hotel.

Professionals must therefore be on the lookout for proof of “financial consent”, judges and authorities responsible for the prosecution of fraud are in fact particularly concerned that the consumer was not hired without knowing. The right information at the right time. Neither more nor less!

How should I receive my pre-contractual information?

E-commerce sites often consider that pre-contractual information must be presented without any action on the part of the consumer and, in particular, without the consumer having to click on a hypertext link.

Believing this to be the case, the DGCCRF ordered the companies Cdiscount and Nature & Découverte to deliver the pre-contractual information to the consumer directly and no longer via hyperlinks, as they had previously done. But by two judgments of the TA Bordeaux of 23 November 2021 and the TA of Versailles of 22 November 2021, these two preliminary rulings were canceled.

The DGCCRF should have checked “if the fact of making this information available through a hyperlink could not be considered a means adapted to the remote communication technique used […]allows access to information in clear and understandable language”. Furthermore, the administration could not base its decision on drawing a parallel with the provisions requiring a direct written confirmation of the information after the conclusion of the distance contract (CJEU, 5 July 2012).

Pre-contractual information would therefore escape this requirement of receipt on a durable medium of the documents in which it was committed. However, it should be noted that there is no indication that a court could reach the same conclusions. This jurisprudence, although interesting, must therefore be relativized and monitored in its development.

An online ordering process is therefore, by definition, constantly evolving. A regular review of the same is therefore expected to avoid possible disputes on the one hand, but also to possibly simplify it…

Maria M. Capriolilawyer, doctoral student and Pascal Agostiassociate lawyer, doctor of law
Caprioli & Associés, a law firm that is a member of the JurisDéfi network

Expert opinions are published under the full responsibility of their authors and in no way involve the editorial team.

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