Experience voucher without specification of the organizer?

Is a provider of an online offer of vouchers for a balloon flight obligated to inform the buyer about the identity of the organizer? The question of the information obligations of an online shop for such offers has now been decided by the Federal Court of Justice (BGH).

The operator of an online shop for experience vouchers offered vouchers for a hot air balloon flight on the internet, among other things. For the voucher "Alpen-Panorama im Heißluftballon", he only specified the price and the location of the flight. In its terms and conditions, the online shop pointed out that it only owed the mediation of organizers. For this purpose, the seller of the balloon flight transmitted to the customer a voucher after purchase, which could be redeemed within three years with one of the experience partners to be selected from a pool of several organizers. However, these were not precisely identified.

In the failure to identify the possible organizers, the plaintiff competition center saw a violation of the information obligations of the internet entrepreneur, issued a cease and desist notice, and demanded injunctive relief.

Both the Regional Court (LG) and the Higher Regional Court (OLG) granted the claim as requested, so that the shop operator had to obtain a decision in the context of appellate proceedings before the Federal Court of Justice (BGH).

Court decision

WithUrteil vom 09.10.2013 – Az. I ZR 24/12 – the Federal Court of Justice (BGH) decided that a provider of vouchers for balloon flights is not obligated to indicate the identity and address of the hot air balloon flight company in the offer of the mediation service.

The BGH (Federal Court of Justice) justifies its decision on the grounds that the distributor of such vouchers is unable to provide such information due to the special circumstances of its service offering, which is characterized by temporal and personal flexibility. Therefore, the application of the competition center ultimately aims at a complete prohibition of the business model of the defendant.

Since the internet shop is itself the contracting party of the mediation business specifically offered to the consumer in the advertisement, it is sufficient to fulfil the information obligation, which systematically relates solely to this business, that the shop operator discloses its own identity and address to the buyer.

Conclusion

The competition law information obligations regarding the identity and contact details of the business generally concern the information of the contracting party.

In the distribution of experience vouchers which are not person-specific and whose validity can be redeemed within a sufficiently flexible time period (here three years) with a third party (organizer of the event, here the balloon flight), the business operator does not have to inform the consumer already at the time of offering the experience about the identity and address of the company conducting the balloon flight. The operator of the online shop remains the contracting party.