Withdrawal right information on the "My eBay" page not sufficient

Informing the consumer of his withdrawal right under "My eBay" does not meet the statutory requirements, since the buyer would not come up with the idea of retrieving this information under the heading "Seller Information" / "My eBay". The fact that only one click would be required for this is irrelevant, since the buyer does not click through to it in the first place.

The respondent is a commercial trader and provides the withdrawal right information to his customers both on the "My eBay" page under "Seller Information". He is of the opinion that he thereby fulfils his information obligations.

The court sees the claim for cessation of the applicant from a competition law perspective due to the violation of the statutory obligation to point out the withdrawal right clearly and comprehensibly in connection with sales offers as established (§§ 8 Abs. 1, 3; 4 Nr. 11 UWG i.V.m. § 312c Abs. 1 S. 1 BGB and § 1 Abs. 1 Nr. 9 BGB-InfoV). This obligation applies to both the immediate purchase and the sale to the highest bidder.

In the opinion of the court, no one would suspect information about the withdrawal right under "My eBay". This link is presented under the heading "Seller Information", but the withdrawal right is not seller-related but rather buyer-related. The findability of the information is therefore remote. There is therefore no clear and unambiguous information.

That the information can be reached with only one click is, however, irrelevant, because there is already a lack of any reason on the buyer's side to make this one click.

Conclusion

An important aspect was overlooked by the court in its otherwise correct decision: Often the buyer will not know of the existence of a withdrawal right at all. Whether it is because he is unaware of such a right or in an individual case cannot ascertain with certainty whether the seller is acting commercially. But then he does not even have any reason to search for information he is unaware of, which should make the requirements for the information obligations even more stringent.

An interesting statement – not relevant to the proceedings themselves – is contained in the judgment: the Higher Regional Court (OLG Hamm) apparently considers it possible, contrary to the Federal Court of Justice (BGH), that in the context of internet auctions it is not the seller but the bidders who make the binding contractual offer, of which the seller accepts the highest after the auction ends.