CJEU considers status of order button when a consumer buys goods or services online

June 7, 2024

The CJEU has issued its ruling in Case C-400/22 | Conny. It ruled that the order button, or a similar function, must clearly indicate that, by clicking on it, the consumer assumes an obligation to pay. This applies even if the obligation to pay depends on the satisfaction of a subsequent condition.

The case arose in Germany. A tenant rented an apartment and the monthly rent for the apartment was higher than the maximum ceiling permitted under national law. Consequently, the tenant asked a debt recovery firm to request his landlords to repay rent overpayments. To engage the debt recovery firm, he placed an order through their website. Before clicking on the order button, he ticked a box to accept the debt recovery firm’s terms and conditions. According to those terms and conditions, tenants must pay the firm a third of the annual rent saved if the firm is successful in asserting their rights.

In the ensuing dispute between the service provider and the landlords, the landlords argued that the tenant did not give the service provider proper authorisation to act on his behalf. This was because the order button was not labelled with the words “order with obligation to pay” (or a corresponding formulation), as required by the Consumer Rights Directive (2011/83/EU) (CRD).

The question arose as to whether that requirement also applies if the tenant’s obligation to pay does not arise solely from the order, but in addition requires the successful enforcement of his or her rights.

The German courts referred the issue to the CJEU.  It ruled that under the CRD, the trader must inform the consumer before he or she places the order through the internet that he or she, by that order, assumes an obligation to pay. The trader’s obligation applies irrespective of whether the consumer’s obligation to pay is unconditional or whether the consumer is required to pay the trader only after a subsequent condition has been satisfied. If the trader has not complied with his obligation to provide information, the consumer is not bound by the order. However, there is nothing to prevent the consumer from confirming his or her order.