Statement of telephone number in withdrawal notification provisions is anti-competitive

It is still evident that numerous online merchants, when providing withdrawal notification provisions on eBay or in online shops, state their telephone number in addition to their name, address and possibly a fax number, thereby risking a cease-and-desist letter. The Higher Regional Court of Frankfurt (OLG Frankfurt) already decided in 2004 that this is anti-competitive and subject to cease-and-desist action (judgment of 17.06.2004 – 6 U 158/03).

The court held that the withdrawal notification provisions were thereby extended beyond the statutory requirements. This carried the risk that the consumer might mistakenly assume that he or she could also exercise the right to withdraw by telephone, which is not the case. Pursuant to § 355 Abs. 1 BGB, the right to withdraw may be exercised exclusively in text form, i.e. in writing, by e-mail or fax, as well as by returning the purchased item. The additional statement of the telephone number therefore constituted a breach of the clarity requirement of § 355 Abs. 2 S. 1 BGB, according to which the consumer must be informed with a clearly designed declaration about his or her statutory rights.

The lower court (LG Frankfurt) was still of the opinion that it was sufficiently clear from the withdrawal notification provisions that the right to withdraw itself could not be exercised by telephone, and that the statement of the telephone number could therefore only be understood as an offer to the consumer to obtain additional information. The judgment of the Higher Regional Court of Frankfurt (OLG Frankfurt) was overturned and amended on this point, and the defendant was ordered to cease such conduct.

It is certainly possible at any time to provide the customer with an additional means of obtaining information. However, this should not take place within the framework of the withdrawal notification provisions in order to avoid misunderstandings.