Austrian Supreme Court takes strict stance on information requirements in web shops

The EU's Consumer Rights Directive (Directive 2011/83/EU) contains strict information requirements for online retailers:

  1. Before the consumer is bound by a contract or any corresponding offer, the trader must inform the consumer comprehensively on several aspects, including the main characteristics of the goods/services, the identity of the trader, the conditions of applicable withdrawal rights, etc.
  2. When the trader concludes contracts with the consumer via a website (web-shop), further information requirements exist. The trader must inform the consumer – in a clear and prominent manner, and directly before the consumer places the order – on key features of the (to be concluded) contract, in particular the relevant main characteristics of the goods/services.

All these information obligations are challenging for the design of a web shop. From a practical point of view, the question arises to what extent traders are required to provide the same information to consumers twice, namely the first time in the course of the order process and the second time directly before the consumer places his order.

In a recent decision (accessible here), the Austrian Supreme Court (Der Oberste Gerichtshof, OGH) had to assess to what extent information on the main characteristics of the goods/services must be provided to the consumer directly before the consumer places the order. The OGH basically held that indeed a separate information overview must be provided to the consumer. The relevant overview consists of an executive summary of the (to be concluded) contract, including the relevant key characteristics of the goods/services in question.

The decision concerned the following case: A trader sold, among other products, furniture via a web-shop. In the order process, the consumer was able to access all product details by clicking on the relevant product. In the shopping basket, ie in the last phase of the order process prior to the placement of the order by the consumer, only some of the main characteristics of the product, eg price and delivery time, were displayed, but other main characteristics of the goods (such as the dimensions and the material of the relevant piece of furniture) were missing. The consumer, however, still had the option to access the product specific subpage (containing all product details) by clicking the respective product link in the shopping basket.

That was not sufficient according to the OGH, which states that an online retailer must enable the consumer, directly before the consumer places the order, to grasp the essential points of the (to be concluded) contract at a glance. Thus, a separate information on such essential points must be provided at that point in time.

The fact that the consumer would be able to “go back” to the product page (containing the detailed product information) with just one click, does not suffice. In this regard, the OGH clarified that it is not required to comprehensively provide all product details on the last order page (eg in the shopping basket) again and thus provide the same information twice. Quite the contrary, the OGH stated that this would frustrate the purpose of the statutory information requirements, which intend to provide the consumer in the last ordering step with the essential points only. Thus, in case the consumer is "flooded" with information on all (product) details in the shopping basket, the statutory information requirements would not be met. Hence, the OGH found that the possibility to access the detailed product sub-page cannot substitute a separate information on the essential points, including the key product characteristics.

Practical implications for web shops

In light of this rather consumer-friendly decision by the OGH, web-shop operators are well advised to critically assess their current approach. It should be examined to what extent an "executive summary" of the (to be concluded) contract, including the key product characteristics, is provided to consumers in the order process. This information should be provided (i) in the last order step, typically in the shopping basket, and (ii) in close vicinity of the confirmation requested for placing the order. Furthermore, the information should be provided in a clear and prominent manner, ie tooltip/mouse-over solutions are typically insufficient. The same holds true for solutions, which provide the relevant information only via link to a separate sub-page or via a download-link.