No free choice of language for terms and conditions

Is a foreign company which offers its services or goods to German consumers obliged to provide general terms and conditions in the German language? The Regional Court (LG) Berlin had to decide on a lawsuit filed by the Federal Association of Consumer Centres and Consumer Associations (vzbv) against the US-American instant messaging service WhatsApp.

WhatsApp, probably the most popular app for smartphones in Germany, does provide its website in the German language when accessed from Germany. However, the general terms and conditions found on the website are written exclusively in the English language. The vzbv took issue with this.

Court decision

The LG Berlin decided in its judgment of 09.05.2014 – Az 15 O 44/13 that the absence of terms and conditions in the German language contradicts German law. A prerequisite for the effective incorporation of general terms and conditions is that they can be brought to the knowledge of the contracting party in a reasonable manner. However, it cannot be expected of German consumers that they general terms and conditions in English (legal) language without further ado.

Accordingly, WhatsApp was ordered to cease the use of the English terms and conditions.

In the same manner, the Local Court (AG) Cologne had already assessed the absence of German-language terms and conditions on a booking platform for flight tickets in its judgment of 24.09.2012 – Az 114 C 22/12 .

In the proceedings before the LG Berlin, WhatsApp did not indicate an intention to defend itself, but subsequently filed an objection against the default judgment rendered.

Conclusion

Foreign providers should maintain German-language terms and conditions in Germany. To be distinguished from this is the question of the extent to which the provider is restricted in the free choice of law. If applicable, German law must also be applied to the legal relationship between the provider and the customer. We have already reported on this question in other articles.