Is retrievability of the revocation notice sufficient for access?

The information to be provided to a consumer in the case of distance selling contracts must not only be provided by the entrepreneur in a manner suitable for permanent reproduction, but must also reach the consumer in a manner suitable for permanent reproduction. The Federal Court of Justice (BGH) had to decide whether these requirements were met in that both the sales offer and the revocation notice were retrievable on eBay for 60 days, which the vast majority of Higher Regional Court (OLG) case law has long rejected.

Companies A and B are competitors in the field of internet trading in African art objects. Company B offered African wooden stools in animal shapes in September 2006 on eBay under the "Buy It Now" category. In its offer, Company B informed about the right of revocation as follows:

"You may revoke your contractual declaration within two weeks without stating reasons in text form (e.g. letter, fax, email) or by returning the item. The period begins at the earliest with receipt of the goods and this notice."

A buyer was able to save and print the above notice. Furthermore, he could retrieve the complete purchase offer including the notice under 'My eBay' - there under 'I have purchased' - after conclusion of the purchase contract.

Company A sent Company B a costly demand letter and requested cessation of conduct on the grounds that it believed the revocation notice to be unfair competition. It would not be provided in the text form required by law already with the contract offer, but at best after conclusion of the contract. The revocation period would therefore be not two weeks, but four weeks.

The defendant, on the other hand, argued that his revocation notice complies with the text form requirement. It is made accessible to the recipient of the declaration as storable and printable electronic information. This is comparable to the transmission of the revocation notice to the consumer by email.
The dispute value was stated by Company A at EUR 10,000.00.

Decision of the Federal Court of Justice (BGH)
The Federal Court of Justice (BGH) decided in itsJudgment of 29 April 2010 – I ZR 66/08, that the contested revocation notice was not provided in text form by being held available on eBay, since it was neither provided in writing nor in a manner permitting permanent reproduction before conclusion of the contract. The fact that the sales offer and the revocation notice were retrievable on eBay for 60 days was irrelevant in this respect.

Before conclusion of the contract, the notice would not be communicated to the consumer and would not otherwise come within its sphere of control. The revocation period would therefore be not two weeks, but one month. The breach of law committed by Company B thereby substantially impairs competition, as Company B can expect fewer revocations than law-abiding competitors. The consumer is put by the notice into the mistaken assumption that the period has already expired, and is thereby possibly deterred from exercising a right of revocation.

Conclusion

The Federal Court of Justice (BGH) thereby confirmed the prevailing Higher Regional Court (OLG) case law in Germany, but reduced the standard dispute value for such matters to EUR 8,000.00.

It is necessary to note, however, that in this case the legal situation prior to 01.06.2010 was taken into account. The revocation period in the case of distance selling contracts still only begins with the notice in text form (e.g. by email) and receipt of the goods. However, it is now possible in eBay sales to obtain the two-week revocation period also by means of a revocation notice provided in text form after conclusion of the contract. However, this must reach the buyer without undue delay after conclusion of the contract. Otherwise, the four-week period remains.

What 'without undue delay' means in detail has not yet been decided at that time. It is therefore advisable to inform oneself about the precise information obligations and their design.