Withdrawal notice without heading effective?

The Federal Court of Justice (BGH) had to decide whether a withdrawal notice formatted in continuous text that corresponded word for word to a statutory template should be ineffective because the user omitted the subheadings.

The operator of an online shop used General Terms and Conditions for his internet trade, which he also effectively incorporated in sales. In doing so, he also used a statutory template terms and conditions clause regarding consumers' right of withdrawal. This clause was marked with the heading "Withdrawal Notice". The further subheadings provided in the template, "Right of Withdrawal", "Consequences of Withdrawal" and "Financed Transactions", the shop operator omitted for reasons of space.

When a customer wanted to withdraw from the transaction conducted on the internet six months later, the shop operator refused this to the consumer, as the withdrawal period of four weeks had long since expired. The consumer was of the opinion that the clause presented to him was ineffective, as the consequences of a missed withdrawal period were not apparent to him.

Court's Decision
The BGH ruled byjudgment dated 01.12.2010 – Az. VIII ZR 82/10that a withdrawal notice used by the entrepreneur without subheadings, on the one hand, does not correspond to the statutory model withdrawal notice and, on the other hand, is not clear within the meaning of the law, so that as a result the withdrawal period had not begun to run. The consumer was thus entitled to withdraw from the transaction even six months after delivery of the goods.

Withdrawal notices must be clearly formatted and must make the consumer's essential rights clear to him in accordance with the requirements of the means of communication used. In the present case, the shop operator used a withdrawal notice which was headed only with the word "Right of Withdrawal". The subheadings provided for in the model notice were missing. From this formatting, it would not be clear to the consumer that the notice also contained information about the consequences of withdrawal and at which point these begin and end.

The template incorporated into the Introductory Act to the BGB complies with these requirements. If subheadings are omitted, according to the opinion of the Karlsruhe judges, the withdrawal clause no longer corresponds to the template, so that the statutory privilege cannot apply.

Conclusion

The BGH continues to set very strict standards for the effectiveness of withdrawal notices. Internet shop operators should therefore definitely consult a specialized lawyer before using them.

In the present case, the shop operator must also fear being given a cease-and-desist notice for infringements of competition law. Ineffective terms and conditions are generally unfair competition and thus subject to cease-and-desist notices.