Customers need to be able to clearly identify B2B online print stores as such and use them accordingly. What store features need to be borne in mind in this respect? Dr. Martin Schirmbacher explains the standards and restrictions involved, based on current eBusiness cases.
Dr. Martin Schirmbacher is an attorney at HÄRTING Rechtsanwälte and acts as the official legal adviser to the Initiative Online Print. Back at the start of 2017 he recapped on legal aspects of relevance to the industry during the last fiscal year for beyond-print.de and touched on issues relevant to the current year, including consumer rights. And that’s exactly what this blog post is focusing on – duties of information, ordering data inquiries and the B2B status of online print stores. How can store operators – as purely B2B or as mixed B2B/B2C providers – use store design to safeguard themselves against unpleasant legal disputes involving duties of information and consumer protection issues?
Many online print providers sell almost exclusively to business customers and therefore focus on providing a purely B2B online store service. The advantage of this is that the legal requirements of consumer law, such as duties of information and cancellation rights, do not apply to contracts concluded with businesspeople. Furthermore stores are allowed to state net prices and then add sales tax at checkout time. After all that provides significantly more latitude when formulating GTCs.
However it’s wise to be cautious – once consumers get the opportunity to order products from the online store’s website, these privileges no longer apply. So what do store operators need to bear in mind when opening an online store that only targets businesspeople? What action does an online print provider need to take to exclude consumers? And how should they design their stores if they don’t want to forgo orders from consumers?
Information on the homepage
Case law requires that the homepage clearly states that the store in question is a B2B store. If that is not obvious from looking at the products being offered (e.g. a niche store that only prints business reports and AGM invitations), then the homepage of the B2B store should feature an unambiguous and clearly highlighted statement that explains that the store’s offering is aimed exclusively at businesspeople and that consumers cannot enter into contracts with the store. Information in the margins, which perhaps can only be viewed once you have scrolled down several pages, is not likely to be adequate. According to an adjudication by the Regional Court in Kiel (judgement dated 09.27.2013, File Ref. 17 O 147/13) color marking is not sufficient; the information must be specially highlighted by using a different font size or similar measures. The Regional Court in Berlin was of the opinion that the following information was adequate: “For commercial customers only. All prices are stated exclusive of statutory sales tax.”. In a very recent adjudication, Germany’s Federal Supreme Court (judgement dated 05.11.2017, File Ref. I ZR 60/16) was satisfied by the following statement: “For sale to businesspeople, tradespeople, freelancers and public institutions only. Not for sale to consumers as defined in § 13 BGB (German Civil Code).”.
Whether other statements are required depends on the nature of the store. The Regional Court in Berlin (judgement dated 02.09.2016, File Ref. 102 O 3/16) ruled that it depends on what products are sold via which channel. If the products, for example, are sold via a proprietary online store, then the chances of consumers accessing the store “by accident” are significantly lower than would be the case in relation to a commercial platform like Amazon or eBay.
Other measures above and beyond the general statement are then not necessary, if the products are not targeted at consumers. The particular judgement involved the sale of large-format printer accessories. The Court ruled that it‘s obvious that such an offering is only aimed at businesspeople, given that consumers basically don’t have such printers at their disposal. According to the Court, the offering of 0.5-liter bottles of ink is obviously not aimed at consumers, since refill inks are sold to consumers in milliliters.
The fact that the online store in question also sold some products that could be used by consumers, was in the judges’ opinion not sufficient to trigger further duties of information. What‘s more important is whether the informed consumer can recognize “at first glance” that the vendor is targeting their offering at companies only.
Ordering process inquiries
Sufficient effort must also be made in the ordering process to ensure that the customer involved is indeed a businessperson. In line with an adjudication by the Higher Regional Court in Hamm (judgement dated 09.20.2011, File Ref. I-4 U 73/11), this duty to check applies even if the offering is otherwise clearly aimed at advertisers.
A simple check box with the text “I accept the GTCs and expressly confirm my commercial usage status” is not sufficient, according to another adjudication by the Higher Regional Court in Hamm (judgement dated 11.16.2016, File Ref. 25 O 139/15), since the confirmation of usage status can easily be overlooked. If completing the “Company details” box in the order or registration form is only voluntary, this conveys the impression that commercial usage status is not exactly absolutely necessary.
The “Company” field should therefore always be a mandatory field. The businessperson does not need to undertake further checks here. Germany’s Federal Supreme Court even did not object to a test buyer having entered “private individual” in the Company field (judgement dated 05.112017, File Ref. I ZR 60/16).
A proactive confirmation of business status is also helpful for making that distinction. There should also be an explicit statement in the GTCs that eligible buyers are limited to business customers.
However further forms of verification are basically not necessary. Presentation of a trading license in particular is not required. Customer details do not need to be checked by hand either. Consumers that obtain an agreement under false pretenses by falsifying facts cannot then invoke their consumer status.
A mix of B2B and B2C
If the above-mentioned measures are enough to ensure that consumers cannot place orders, the store operator can ignore consumer law and does not need to inform buyers of the existence (or non-existence) of cancellation rights. And the operator can advertise/state net prices.
If however private customers are served, even if only in exceptional cases, then consumer protection law applies. Now there are several options for getting round that – the neatest solution would be to separate stores into business and private customer sections. Consumers are then only permitted to place orders in the private customer section. The effort and expense involved is then only likely to be justified, if it is actually validated by a significantly level of private customer sales.
If both customer groups are served within the one store, then consumer law must basically be complied with. In particular, store operators are then not permitted to advertise net prices. Of course store operators can grant the same rights to business customers as they need to afford to consumers. A cancellation right is not common anyhow, because customized products are involved.
The leeway that B2B business traffic provides in terms of formulating General Terms & Conditions should however not be parted with unnecessarily. One idea would therefore be to provide different GTCs for consumers and business customers. But this must then be actioned accordingly in the ordering process to ensure that the right GTCs are factored in. Another option would be to differentiate between orders placed by private customers and business customers in the GTCs themselves. Providing this kind of transparency is however a (meetable) challenge.
Anybody who operates a purely B2B store does not have to worry about consumer law. However this requires that the store can be identified as a B2B store and that it is practically impossible for consumers to place orders at the store. Those that don’t want to forgo occasional orders from private customers must comply with valid consumer law and must state gross (including sales tax) prices, in particular. Otherwise store operators are at risk of receiving warnings. However what is feasible is differentiating between orders placed by private customers and business customers within GTCs.