With the approaching effectiveness of the DSA, as the EU Regulation on Digital Services (Digital Services Act) is abbreviated, articles from this area will be increasing in the media. For these reasons, we consider it useful to remind again that the DSA Regulation enters into force on 17 February 2024 and that for those traders who engage only in the sale of goods in the internet environment, it should not bring any substantial regulatory burden. The impacts on traders will be rather of an indirect nature, as a consequence of new obligations imposed on online platforms that facilitate internet sales. In this legal circular, we will address one of them, namely the enabling of the fulfilment of statutory obligations of traders by the operator of such a platform, which takes the form of an online marketplace.
Specifically, this obligation is enshrined in the provision of Article 31(1) DSA, which stipulates that “Providers of online platforms allowing consumers to conclude distance contracts with traders shall ensure that their online interface is designed and organised in a way that enables traders to comply with their obligations under applicable Union law regarding pre-contractual information and information on product compliance and product safety.” As is known, generally binding legal regulations currently require traders to fulfil a large number of pre-contractual information obligations towards consumers (most frequently traders fulfil these obligations by means of terms and conditions). The fact that a trader offers goods through an online marketplace (and not through its own website) does not change the existence of information obligations towards consumers.
The above-mentioned provision of the DSA thus enshrines an obligation for marketplace operators to adopt such technical measures so that a trader can fulfil its statutory obligations (to enable the insertion of terms and conditions or other texts by the trader and subsequently to display them to consumers). The other side of the coin is then that if the platform operator enables the trader to fulfil these obligations (i.e. enables the trader to insert various information within its profile on the platform), the trader should logically do so. The trader’s responsibility for fulfilling information obligations when selling goods through a marketplace is identical to the case of selling goods through its own website.
From the perspective of the platform operator, it will not be sufficient merely to enable traders to fulfil statutory information obligations, but the platform operator should also monitor whether the trader actually fulfils these obligations. Specifically, this is stated in the provision of Article 31(3) DSA: “Providers of online platforms allowing consumers to conclude distance contracts with traders shall make their best efforts to assess whether these traders have provided the information … before allowing them to offer products or services thereon.” This means that the platform operator should conduct a prior check of the trader’s fulfilment of information obligations before allowing the trader to offer and sell goods on the platform. We shall see how platform operators will approach these obligations in practice.
Josef Aujezdský
This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 11/2023 intended for members of this association.
This text was translated from Czech to English using an AI translator.