The relatively controversial legal regulation of the so-called order or payment button enjoys well-deserved attention among Czech online retailers. This relatively new “institute” in our country recently became the subject of a decision by the Court of Justice of the European Union again, in the case of Conny GmbH (C-400/22). We therefore consider it beneficial to address in this legal bulletin the conclusions which the Court reached in this decision.

By way of introduction, we provide a brief summary of the legislative situation. The so-called payment button is regulated in Czech law by the provision of Section 1826a(2) of the Civil Code, as follows: “A trader shall ensure that the consumer expressly acknowledges when ordering that he is committing himself to payment. Where the order is placed by activating a button or similar control element, it must be marked with an easily legible inscription ‘Order with obligation to pay’ or another corresponding unambiguous formulation. If the trader fails to comply with this obligation, the contract shall be void…” This means that failure by the trader to comply with this obligation has “drastic” consequences in the form of invalidity of the contract of sale itself.

The above-mentioned regulation of the Civil Code is an implementation of EU law, specifically the provision of Article 8(2) of the Consumer Rights Directive. It reads as follows: “Where the order is placed by activating a button or a similar function, the button or similar function shall be labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader.” We note that it is precisely the wording of the directive which is always the subject of interpretation by the CJEU.

Previously, the Court of Justice of the European Union in its judgment in Fuhrmann-2-GmbH v B. (C-249/21), which we addressed in more detail in April 2022, took the view that the requirement for a trader to alert the consumer sufficiently clearly and unambiguously to the moment when he enters into an obligation (and the payment obligation arises), in the case of an order placed by clicking on a button or other similar function, was satisfied by the formulation itself which is stated on the button. This means that from an informational perspective, only the text which is placed on the button itself is decisive (whilst the other context of the user interface of the website is not entirely relevant from this perspective).

In the judgment in question in Conny GmbH (C-400/22), the CJEU then addressed the question whether it is necessary for the trader to mark the button in this way even where the consumer’s obligation to pay only arises upon fulfilment of a certain prerequisite (fulfilment of a condition). That is to say, already at the moment when it is not entirely clear whether the consumer will have any payment obligation towards the trader in the future or not. The Court concluded that even in these cases, it is necessary to mark the “order” (payment) button in this manner, when it stated in this decision that “in the case of contracts concluded at a distance through a website, the obligation of the trader to ensure that the consumer, when placing the order, expressly accepts the commitment to pay shall also apply where the consumer is obliged to pay remuneration to that trader only after a later condition is fulfilled.”

Josef Aujezdsky

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal bulletin No. 06/2024 intended for members of this association.

This text was translated from Czech to English using an AI translator.