The CJEU has ruled in the case of Case C-249/21, Fuhrmann-2-GmbH. The case covered the requirement to have an “obligation to pay” button under the Consumer Rights Directive.
Article 8 of the CRD states that if a distance contract to be concluded by electronic means places the consumer under an obligation to pay, the trader must ensure that the consumer, when placing their order, explicitly acknowledges that the order implies an obligation to pay. The German Civil Code contains an implementing provision which requires the trader to display in an easily legible manner on the button for placing orders the words ‘order with obligation to pay’ or a corresponding unambiguous formulation.
Fuhrmann-2 runs a hotel. The case arose in the context of a hotel booking where the consumer clicked a button saying “I’ll reserve” and another saying “complete booking”. However, there was no button saying “I will pay” or similar. The consumer did not turn up at the hotel and the hotel purported to charge the consumer for their stay.
The referring court stated that the success of the legal action brought by Fuhrmann-2 hinges on whether, the wording ‘complete booking’ on the booking button of the www.booking.com website meets the legal requirements.
It asked the CJEU if a button or a similar function – the activation of which forms part of the ordering process of a distance contract to be concluded by electronic means and which is not labelled with the words “order with obligation to pay” – is labelled with a corresponding unambiguous formulation, indicating that placing the order entails an obligation to pay the trader, is to be answered solely by reference to the labelling of the button or of the similar function. A lower German court had taken the view that you had to look at the whole context of the website concerned but the referring appeal case disagreed with that view. It considered that the term ‘booking’ in the expression ‘complete booking’ is not necessarily associated in everyday language with the obligation to pay financial consideration, but is often also used as a synonym for ‘pre-order or reserve in advance free of charge.
The CJEU said that the test for whether the wording on an order button meets the requirements is that “both in everyday language and in the mind of the average consumer who is reasonably well informed, and reasonably observant and circumspect, it is necessarily and systematically associated with the creation of an obligation to pay”. Only the wording on that button counts, not the wider context.
The European Commission recently updated its guidance on the CRD and it suggests terms such as ‘buy now’, ‘pay now’ or ‘confirm purchase’ would convey the message required by the CRD. On the contrary, phrases such as ‘register’, ‘confirm’ or ‘order now’ as well as unnecessarily long phrases that may effectively conceal the message about the obligation to pay, are less likely to meet this requirement.
