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“Complete booking” – button (in)sufficient?

The ECJ has provided clarification on what has to be taken into account in determining if the ‘pay/buy button’ is sufficiently labelled.

For a consumer to be bound by a contract under the Consumer Rights Directive (CRD) the trader must provide them with the essential information as well as explicitly inform them that they will be bound with an obligation to pay directly before placing the order. The button used to finalise the order must be sufficiently labelled.

The question that came before the court was whether the overall circumstances of the ordering process should be considered or if the actual wording on the specific button / similar function alone is relevant. The Court of Justice of the European Communities (ECJ) decided on this pre-liminary question of a case referred to it by a German court clarifying its position (Fuhrmann-2-GmbH v B (C249/21) EU:C:2022:269).

The case

Fuhrmann-2 is a German company and the proprietor of a hotel in Germany. The rooms of the hotel can be booked through www.booking.com. A consumer visited the website and searched for accommodation in a specific time frame, clicked on the image corresponding with the hotel, whereupon the available rooms were displayed along with additional information. After clicking on the ‘I’ll reserve’ button entering his personal details, he clicked a button labelled ‘complete booking’. He did not appear at the hotel following which the hotel invoiced him in accordance with their general T&Cs. As he did not pay the invoice, the hotel brought a claim against him in a German court.

The case was referred to the ECJ and the referring court explained that another German court had ruled that the overall circumstances of the order process should be considered in determining whether the labelling and words used on the specific button constitute an unambiguous formulation corresponding to the words ‘order with obligation to pay.

The German court doubted the approach taken and asked the ECJ to clarify as it was inclined to take the view that it must be evident from the button itself that the consumer is about to be legally bound with an obligation to pay. Additionally, the German court indicated that it does not view the wording used in this specific case, ‘complete booking’, as necessarily associated with an obligation to pay, but rather as a synonym for ‘pre-order or reserve in advance free of charge’. This would mean that the button would not fulfil the requirements and the consumer would not be bound by the contract or order.

The decision

The ECJ concluded that only the actual words on the button / function should be taken into account. The overall circumstances of the ordering process are not to be considered when determining whether the function fulfils the requirements set out in the CRD.

However, the button / function does not need to be labelled with the explicit wording “order with obligation to pay”. Member states are free to allow traders to use other wording, but for the consumer to be legally bound, the formulation must be a corresponding and unambiguous formulation indicating that placing the order entails an obligation to pay the trader. Pointing out that altering the words in accordance with these requirements does not impose a significant burden that might harm a trader’s competitiveness or freedom to conduct a business as these issues didn’t have to be balanced against consumer protection.

The ECJ did not decide on whether the term ‘complete booking’ meets the requirements as this is for the German courts to assess. They will have to decide if the term, in the German language and in both the everyday language and in the mind of the average, well informed, reasonably observant and circumspect consumer, the words used is reasonably, necessarily and systematically associated with the creation of an obligation to pay.

The German court has already indicated that ‘complete booking’ is often used as a synonym for ‘re-order’. Guidance on the CRD suggests that “buy now”, “pay now” or “confirm purchase” are acceptable options, whereas “register”, “confirm” and “order now” as formulations less likely to work.

It is important to note that as this is a post-Brexit decision it is not binding on UK courts. However, they may have regard to it.

If you would like further information on this topic then please contact Susan Wells at [email protected].

Article contributor  – Tamara Hartmann, Paralegal