KNOWLEDGE BASE Ecommerce - Online Shopping In Germany

 

E-Commerce and Online Shopping in Germany

 

In recent years there has been a huge increase in the number of e-commerce businesses worldwide. Not surprisingly, there has been a corresponding increase in e-commerce regulation worldwide. Not only can the laws and regulations be complex, but they can vary greatly from country to country. You should become familiar with and gain at least a basic understanding of the laws and regulations that apply to your business and because of the rate of technological advancement throughout the world, it is particularly important for you to remember that laws are fluid and subject to change. Germany has developed a legal and regulatory environment to adapt to the new digital age.

 

What laws and regulations apply?

 

Telemedia Act (Telemediengesetz)

 

The Telemedia Act (Telemediengesetz (TMG)) with an aim at spam prevention, data protection, and the enforcement of intellectual property rights.

The Telemedia Act requires that the following information be available on your website:

  • your company name (registered name), address (a PO box is not sufficient), legal form, and authorized representative;
  • your email address or other means to allow quick and direct electronic communication with your company, e.g., phone or contact form that are regularly and promptly checked);
  • if your company is subject to any official authorization or license, details of the regulatory or supervisory body;
  • your commercial register, association register(s), partnership register or co-operative register in which your company is entered;
  • if your company carries out a “regulated profession:” and
    • the Chamber to which your company belongs,
    • the statutory designation of the occupation and the country in which the designation of the occupation was awarded; and
    • the details of the professional rules and where they can be accessed.
  • your VAT identification number (if applicable) and business identification number issued by the tax authorities (if applicable).

 

Commercial communications

If you want to communicate with customers (or potential customers) commercially online, the Telemedia Act requires that you:

  • identify your company and clearly your commercial communication as commercial communication and
  • make all promotional offers, such as discounts, premiums, gifts, and prizes and games of an advertising nature identifiable as such and make their terms and conditions easily accessible and clearly and unambiguously presented.

Regulation on Information Obligations for Service (Verordnung über Informationspflichten für Dienstleistungserbringer)

 

Special regulations applicable to service providers

Service providers have additional obligations to their customers. Under the Regulation on Information Obligations for Service (Verordnung über Informationspflichten für Dienstleistungserbringer (DL-InfoV)), service providers must make the following information available to customers in a clear and unambiguous manner before the conclusion of the contract (or in the absence of a written contract, before the service is provided):

  • your company name and legal form;
  • your geographic address and contact details that allow customers to communicate with you quickly and directly, e.g., phone and fax number and email address;
  • your commercial register, association register(s), partnership register or co-operative register in which your company is entered;
  • where the activity (service) is subject to authorization and the particulars of the relevant, competent authority or the Point of Single Contact;
  • your VAT identification number (if applicable);
  • if your company carries out a “regulated profession:”
    • the Chamber, professional body, or similar institution to which your company belongs, and
    • the statutory designation of the occupation and the country in which the designation of the occupation was awarded.
  • the general conditions and clauses you use (if applicable);
  • the existence of a contractual clause of the law that governs the contract and the competent court(s) (if applicable);
  • the existence of an after-sales guarantee not imposed by law (if applicable);
  • the main features of the service, if it is not apparent from the context;
  • details of your professional indemnity insurance (if applicable, specifically, the contract details of the insurer and the territorial coverage; and
  • the pre-determined price of the service.

 

The following information must be provided to your customers at their request:

  • if you carry out a “regulated profession,” a reference to the professional rules and details on how to access them;
  • information about your multidisciplinary activities and profession partnerships that are directly linked to the service in question and on the measures taken to avoid any conflicts or interest;
  • any codes of conduct you are subject to and the website on which the code(s) can be consulted, including the languages available;
  • if you are subject to a code of conduct or a member of an association that provides recourse to a non-judicial means of dispute settlement, you must provide information about the process, including access to it and and conditions for its use; and
  • if the price is not pre-determined or agreed to, you must provide the individual price of the service or, if an exact price cannot be given, your method for calculating the price, or a detailed estimate.

 

German Civil Code (Bürgerliches Gesetzbuch)

 

Distance selling and contracts

The German Civil Code (Bürgerliches Gesetzbuch (BGB)) regulates distance selling, distance contracts, and some aspects of e-commerce. There are additional requirements for distance selling and contracts. Distance selling or contracts are contracts for the supply of goods or services made solely by means of distance communication. The following information, the commercial manner of which must be made, must be provided to your customers in a clear and comprehensible manner in any way appropriate for the distance communication used before the conclusion of the contract:

  • your company identity, including you commercial registration number;
  • the identity of an agent or another person affiliated with your company in the EU state of you consumer;
  • your company address (a PO box is not sufficient);
  • the main characteristics of the goods or services, including information on the modalities of the conclusion of the contract;
  • the minimum duration of the contract for contracts for the supply of goods or services to be performed permanently or recurrently;
  • a reservation to supply goods or services of equal quality and price;
  • a reservation not to supply goods or services if they are not available;
  • the lump sum (final) price of the goods or services, including all components and taxes. If the price cannot be fixed, your method for calculating the price;
  • additional delivery and shipping charges;
  • the arrangements for payment and delivery or performance;
  • the existence of nonexistence of a right of withdrawal or a right of return (very detailed information is required, samples are available in German in Annex 1 and Annex 2 of the German Introductory Act to the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch (EGBGB));
  • additional costs of using the means of distance communication, e.g., hotline;
  • limitations on the period in which the information is correct or valid, especially for price;
  • contract conditions, including general terms and conditions;
  • conditions for the termination of continuing obligations of contracts concluded for more than one year or an indefinite period, including contractual penalties; and
  • after-sales services and guarantees that exist.

Generally, this information must be provided in written form, but providing this information only on your website is not sufficient. An email or fax will generally suffice.

 

E-commerce contracts

Under Section 312i and 312j of the BGB, if the contract itself is concluded through e-commerce between you and a customer, the following requirements apply, in addition to the requirements for distance selling and contracts:

  • you must provide your customer with reasonable, effective, and accessible technical means to help him identify and correct input errors prior to placing his order;
  • you must inform your customer:
    • of each step in the process of forming a contract,
    • of the languages available for the contract,
    • about the storage of the contract and how he can access it, and
    • about any applicable code of conduct and how to access them.
  • you must send a confirmation receipt of the order or contract without undue delay by electronic means to your customer;
  • you must make it possible for your customer to access the contract terms, including the general terms and conditions when the contract is entered into and a way to save them in a reproducible form; and
  • you must let your customer know whether any delivery restrictions exist and what payment options are offered.

 

Section 312j also requires that you make the ordering process such that your customer explicitly confirms with his order that he is liable for payment. If an order is placed using a button, it must be marked in an easy-to-read manner with nothing else except the words “order and pay,” (in German, “zahlungspflichtig bestellen”), or equally unambiguous wording. If you do not provide this button for a customer to conclude a transaction, no contract will be deemed to have been formed and the customer is not liable for payment.

 

Price Indication Ordinance (Preisangabenverordnung)

The Price Indication Ordinance (Preisangabenverordnung (PAngV)) regulates the the details about pricing. Under the Price Indication Ordinance, you are required to provide your customer with a final price, which includes VAT and any other pricing components.

 

Globig Resources

Telemedia Act

Regulation on Information Obligations for Service

German Civil Code

German Introductory Act to the Civil Code

Price Indication Ordinance

 

KNOWLEDGE BASE Ecommerce - Online Shopping In Germany