Even before the so-called button directive amendment arrives in the legal order of the Czech Republic with approximately a decade’s delay, this issue has already come under scrutiny before the Court of Justice of the European Union. We recall that this concerns the provision of Article 8(2) of the Consumer Rights Directive, which states: 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.
What was this case about? The company Fuhrmann-2 owns the hotel Goldener Anker in Krummhörn-Greetsiel (Germany). Rooms in this hotel can be rented, inter alia, through the well-known intermediary Booking.com. Mr B. decided to do so, wishing to reserve four double rooms. Specifically, after clicking on the ‘Reserve’ button, he entered his personal details and the names of the persons who would accompany him, then clicked on the ‘Complete booking’ button. However, he did not arrive at the hotel on the day in question and the hotel operator invoiced him the amount of EUR 2,240 in accordance with the terms and conditions, which Mr B. did not pay.
The referring court mentioned that another national court had previously held that, for the purpose of determining whether the expression ‘Complete booking’ constitutes an unambiguous formulation corresponding to the expression ‘order with obligation to pay’, all the circumstances of the ordering process (in particular its design) must be taken into account. However, the referring court was unable to agree entirely with this conclusion. On the contrary, it took the view that the description on the button itself must show that the consumer is aware that activating that button creates a legally binding payment obligation. Furthermore, it considered that the word ‘booking’ in the expression ‘Complete booking’ is not necessarily associated in common language with an obligation to pay financial consideration, but is also frequently used as a synonym for ’to reserve in advance free of charge’.
On the basis of the case mentioned, a preliminary question was then referred to the CJEU. Specifically, the question was whether it is sufficient for the trader to adequately ensure that the consumer is aware of the arising payment obligation in the broader context of the entire ordering process, or whether the consumer must be aware of this purely on the basis of the inscription (description) on the order button.
The Court of Justice of the EU ultimately concluded that ‘only the wording on that button or similar function must be taken into account’. It justified this decision by stating that it is particularly necessary to take into account the wording of Article 1 of the directive, which sets out one of its objectives, namely the aim of achieving a high level of consumer protection. In this light, according to the Court, it is also necessary to approach the interpretation of Article 8(2) of the Consumer Rights Directive. If a requirement is imposed on the trader to alert the consumer sufficiently clearly and unambiguously to the moment when he enters into a commitment (and a payment obligation arises), then in the case of an order placed by clicking on a button or other similar function, it is necessary for this requirement to be fulfilled solely by the formulation stated on the button itself. According to the CJEU’s conclusion, traders cannot therefore refer to other circumstances of the ordering process. The Court thus adopted a stricter interpretation of this provision, which traders will need to take into account in future.
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 bulletin No. 04/2022 intended for members of that association.
This text was translated from Czech to English using an AI translator.