E-commerce in Germany - legal frameworks Print
For years, internet trading in Germany has been constantly increasing. According to the German E-Commerce and Distance Selling Trade Association (bevh), corporations in Germany received a turnover of over 60 Milliard EUR in this area in 2016. Therefore, Germany came second in the EU, straight after the United Kingdom, when it comes to the size of e-commerce.
Smaller as well as larger corporations often think that the mere translation of their website into German is enough in order to perform e-commerce in Germany. In order to be able to legally participate at e-commerce, various requirements, which the German legislator as well as the German jurisdiction require and which are subject to constant change, have to be fulfilled. Thus in 2018, major changes in the field of data protection law, which online shop retailers have to comply with, were enforced. Only the continuous examination of one's own website with the applicable law makes it possible to avoid high penalties or warranties, which are connected to high fines.
The following regulations are subject to constant change:
Every commercial web presence on the internet obliges the entrepreneur to recognize the service providers (so called "imprint obligation"), which is regulated in the Telemedia Act. Without exception, every seller has to make the name and address of his company available; depending on the legal form of a company, various other information have to be published as well. As long as the company itself is a legal entity, the company registration number and the authorized representative of the company have to be stated too.
Right of revocation:
The question concerning the right of revocation is always an up to date one. Every seller in the EU is obligated to inform the consumer about the applicable right of revocation. Moreover, he has to provide the consumer with a corresponding sample-revocation.
Terms and conditions
The seller is obligated to provide the consumer with a contract confirmation after the conclusion of the contract. The terms and conditions in relation to B2C contracts have to be published on the website or have to be sent to the consumer along with the contract confirmation.
Law against unfair competition:
Likewise in the field of online trade, the regulations in relation to competition, advertisement or price regulation ("Preisangabenordnung") are applicable. Particular significance is given to questions about the German law against unfair competition (UWG), which also contains conditions for online-advertisement. Online advertisement which is directly transmitted to the consumer is forbidden as long as the consumer does not expressly consent or the advertiser can prove that:
- He has acquired the consumer's email address through a sales or service contract,
- The email address has been used for direct advertisement of similar products or previously used services
- The consumer has not objected to the use of his email address,
- The consumer had been informed that he can remove the advertisement at any time without additional charges
Every operator of an online shop has to verify the current legislation and has to adjust his internet appearance, as he otherwise is in danger of infringing competition laws and will be send a warning. This normally occurs through direct competitors, who distribute similar products and work in the same branch. Industry associations, who want to protect the economic interests of its members, can also send a warning to the infringing parties.
A warranty is usually attached to a so-called "cease and deists order" through which the person receiving the warning is obliging himself to refrain from further unfair actions. Such cease and desist orders should not be immediately signed but rather reviewed by a lawyer to see whether an actual unlawful action, which obliges the party to sign a cease and desist order, took place. Furthermore, a specialised lawyer can modify such an order so that the person receiving the warranty has a small burden after signing it.
The above-mentioned information is an extract about existing rules in the online trade and are by no means exhaustive.