German Court Allows Traders To Breach The Spirit of EU's ODR Law

The objective of the EU's Regulation on Online Dispute Resolution was to ensure online traders promoted the availability of quality assured forms of Alternative Dispute Resolution (i.e any system to resolve disputes other than through a court) that,importantly, would have to be able, for those consumers who so wished, to operate online (i.e ODR). To achieve this, the legislation requires online traders, when selling products or services to buyers who bought other than for the purpose of a trade, profession, business or craft (i.e those coming within the definition of 'consumers') , to carry on their websites a hyperlink to an EU platform which would assist dissatisfied consumers by directing them to an approved provider of ODR. The objective, by encouraging the availability and transparency of available resolution services, was to build confidence amongst consumers to buy online from traders in any EU member state.

To cover the situation for traders selling via marketplaces like eBay and Amazon , this legal duty to carry the hyperlink was extended to marketplaces.

A case by a consumer association alleging breach of the Regulation by a German trader on Amazon was issued in the Higher Regional Court in Dresden, Germany (Oberlandesgericht DresdenUrteil v. 17.01.2017 - Az.: 14 U 1462/16). Despite the same court having previously declared that sellers on eBay must carry the link on their own eBay pages, on this occasion it declared that there was no such duty for this Amazon seller. The court ruled (Case: 14 U 1462/16) that, whilst Amazon, as a marketplace, had a duty to display the link, since the offer for the sale of the goods was not on the trader's website, but on that of the online platform, the trader did not have to provide a link to the EU platform.

We wait to see if this ruling is overturned on appeal. It might be said that, whilst the court felt the website on which the link was required had to be one on which the sale was transacted, that the Regulation itself did not add such a requirement. Article 14 (1) of the Regulations states (my emphasis) :-

"Traders established within the Union engaging in online sales or service contracts, and online marketplaces established within the Union, shall provide on their websites an electronic link to the ODR platform. That link shall be easily accessible for consumers. Traders established within the Union engaging in online sales or service contracts shall also state their e-mail addresses."

Amazon's main site does contain the hyperlink but it is arguable that they have not complied with the requirement that it should be 'easily accessible'.To find it you have to seek out their Terms of Use and then scroll down to paragraph 14 entitled 'Applicable Law') , where it says:-

"14. Applicable Law

These conditions are governed by and construed in accordance with the laws of the Grand Duchy of Luxembourg, and the application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. We both agree to submit to the non-exclusive jurisdiction of the courts of the district of Luxembourg City, which means that you may bring a claim to enforce your consumer protection rights in connection with these Conditions of Use in Luxembourg or in the EU country in which you live. The European Commission provides for an online dispute resolution platform, which you can access here: http://ec.europa.eu/consumers/odr/. If you would like to bring a matter to our attention, please contact us."

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When the time comes for the European Commission to review the effectiveness of the Regulation , it might consider avoiding the potential for loopholes as highlighted in this German case by the simple step of removing the highlighted words 'on their websites' and replacing with the phrase "or cause to be provided, on any web page containing their offer to sell any product or service ". In this way responsibility will rest always with the trader.