eBay seller: obligation to provide information on OS platform?

Since 09.01.2016, pursuant to the EU Regulation on the Online Resolution of Consumer Disputes, online merchants have been obliged to place a link to the OS platform on their website (as we reported). Are eBay sellers also subject to this information obligation?

A merchant operating on the eBay trading platform, primarily offering vehicle and motorcycle accessories, was warned by an interest group of online entrepreneurs for alleged infringements of competition law, including the absence of a link to the OS platform.

The Regional Court (LG) Koblenz rejected a finding of infringement of competition law with regard to the missing link. In the view of the LG Koblenz, entrepreneurs are obliged only on "their websites", but not when they maintain their offers on an online marketplace that is itself obliged to provide such a link.

The court's decision

The Higher Regional Court (OLG) Koblenz disagreed with this in its judgment of 25.01.2017 – Az. 9 W 426/16. The OLG agreed with the view of the interest group that an eBay seller is obliged to provide a link to the OS platform in their own offers maintained on the trading platform. The link already present on eBay from the online marketplace is not sufficient in this regard.

The court justified its decision on the grounds that neither the wording of the regulation nor the corresponding recital thereof indicates that the regulated obligation for online merchants should cease if they maintain their offer on an online marketplace such as eBay and that marketplace already contains a link. Online marketplaces are to be obliged equally and not merely instead of or for the enterprises operating on their marketplace to provide a link to the OS platform.

Conclusion

Case law has not yet been consistent on this question. In contrast to the judgment from Koblenz, the Higher Regional Court (OLG) Dresden decided in its judgment of 17.01.2017 – Az. 14 U 1462/16 that not every individual merchant of an online marketplace must provide such a link, but rather the link of the marketplace operator is sufficient.

However, the overwhelming majority of courts recognises an obligation for the individual merchant to provide notice (including OLG München, Urteil vom 22.09.2016 – Az. 29 U 2498/16). Such a link is therefore recommended even for online entrepreneurs if they offer their products via an online marketplace.