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Hans-Peter Kröger Since 28.05.2022, the new "Omnibus" Directive applies to operators of online shops. It combines four EU directives that have a major impact on their work and offers. Violations may result in expensive penalties, warns Hans-Peter Kröger, lawyer, wine merchant and wein.plus framework contract partner.

The "Omnibus Directive" combines four EU directives on competition and consumer protection in one document (EU Directives 2019/2161 v. 27.11.2019). Hans-Peter Kröger, a lawyer specialising in this area, explains what they contain and what they mean - and what risks can arise from them for operators of online shops and homepages.

  • Consumer Rights Directive (2011/83/EU)

    The directive requires that consumers be informed of the criteria used to determine rankings in search results. If the position in them has been bought, it must now be clearly marked. It is also important to know whether a supplier on a digital marketplace is acting as an entrepreneur.

  • Directive on Price Indications (98/6/EC)

    This deals primarily with the subject of "strike prices". It defines how you have to present discounts in your online shop.

  • Unfair Commercial Practices Directive (2005/29/EC)

    This directive regulates consumer claims for damages when shopping. It is also intended to provide better protection for victims of dubious coffee runs or aggressive doorstep selling.

  • Directive on Unfair Contract Terms (93/13/EEC)

    It contains additional rules on fines for the drafting of consumer contracts in which unfair terms have been included.

If all this sounds complicated to you: Don't worry. The innovations summarised in the Omnibus Directive are primarily legal regulations to strengthen consumer protection in competition and commercial law . If you have behaved transparently and in accordance with the law up to now, you have nothing to fear. This is because according to Section 5a (1) UWG-NEU you are acting unfairly,

Whoever misleads a consumer or other market participant by withholding essential information which the consumer or other market participant needs according to the respective circumstances in order to make an informed business decision and the withholding of which is suitable to induce the consumer or other market participant to make a business decision which he would not have made otherwise.

But beware: the many formal details of the new rules could presumably quickly be misused as an expensive warning trap.

Here are the most important changes. Please check them carefully so as not to expose yourself to any risk:

Cancellation policy

As of 28.05.2022, you can, but no longer have to state a fax number in the cancellation policy and the model cancellation form. It remains mandatory by law to indicate the telephone number in the revocation instruction and the e-mail address in the revocation instruction and in the model revocation form. Nothing changes here.

If you have other online means of communication at your disposal, such as WhatsApp or social media, you must now also specify these as a means of contact (Art. 246a § 1 para. 1 sentence 1 no. 3 EGBGB-Neu). However, you must ensure that your customers can save the communication on a data carrier.

If you (also) sell digital content, such as e-books or audio files for download, the consumer's right of withdrawal only expires prematurely if you have sent the consumer a confirmation to this effect (§ 312f BGB), which can be saved on a data carrier.

Three conditions must be fulfilled:

  • The consumer has expressly consented to your commencing performance of the contract before the time limit for withdrawal expires.
  • The consumer confirms his knowledge that by his (aforementioned) consent his right of withdrawal expires with the start of the performance of the contract.
  • You confirm the shortened right of withdrawal to him in writing - preferably in your confirmation e-mail when you receive the order.

Changes in the Price Indication Ordinance (PAngV)

It is now important to observe the 30-day rule: As a strike price (= comparison between old and new price, for example "instead of 8.50 euros only 6.50 euros"), in the future may now only show the price that was lowest in the past 30 days (§ 11 of the Price Indication Ordinance (PAngV)).

§ 11 Additional obligation to indicate prices in the case of price reductions for goods

  1. Any person who is obliged to indicate a total price shall indicate to consumers, whenever he announces a price reduction for a good, the lowest total price which he has applied to consumers within the last 30 days before the application of the price reduction.
  2. In the case of a gradual, uninterrupted increase in the total price of a product, the lowest total price referred to in paragraph 1 that was applied to that product before the gradual price reduction to consumers started may be indicated during the period of the price reduction.
  3. Paragraphs 1 and 2 shall apply mutatis mutandis to those obliged to indicate only the basic price under section 4(2).
  4. Paragraphs 1 to 3 do not apply to the disclosure of
    1. individual price reductions or
    2. price reductions for perishable goods or goods with a short shelf life, if the required price is reduced because of an imminent risk of spoilage or an imminent expiry of the shelf life and this is indicated to consumers in an appropriate manner.

However, the 30-day rule does not apply in the case of:

  • individual price reductions
  • price reductions for perishable goods or goods with a short shelf life, if it is made clear to the customer that the price reduction is intended to avoid possible expiry
  • statements which do not refer to a specific, previously higher price, e.g. advertising with "knockdown price" or "permanently low price
  • Free gifts if the product is sold at the same price, for example "3 for 2" or "1 + 1 free".
  • Price comparisons with the recommended retail price (RRP)
  • B2B transactions
  • Services
  • Properties
  • pure digital content

Changes in basic price indications

Since 28 May, the units of measure for indicating the basic price have been standardised: units of 100 ml or 100 g are no longer permitted. The basic prices for products with a typical nominal volume of 250 g or 250 ml are indicated in the future in relation to 1 kg or 1 litre.

The deposit amount, for example for one-way and returnable bottles, must be presented next to the total price - and must not be included in the total price.

Otherwise, nothing changes in the presentation: § 4 PAngV nF still requires that the basic prices must be presented "unambiguously, clearly recognisable and easily legible" as well as "perceptible at a glance".'

Obligation to check customer ratings

Since 28.05.2022, online traders must inform whether and how they ensure that their customer reviews are not fake reviews. The reviewers must have actually purchased the rated products.

§ Section 5b (3) UWG

If a trader makes available reviews that consumers have made with regard to goods or services, information on whether and how the trader ensures that the published reviews come from such consumers who have actually used or purchased the goods or services shall be considered material.

This excludes:

  • Sales presentations on trading platforms such as eBay, Amazon or Etsy.
  • Traders who operate their own shop/homepage, but do not directly and immediately display consumer reviews there, but only refer to external consumer reviews or an external collection of consumer reviews via links.

This new mandatory information must appear in the direct visual context of the displayed ratings. In addition, it is recommended that you set up a separate menu item in your navigation with the title "Information on the authenticity of customer ratings" and additionally provide the information there.

New labelling requirements for paid advertising

If you yourself or someone else advertises a product for you on the popular social media channels and you or the advertising partners receive a service in return such as

  • Monetary payments
  • Commissions
  • gifts
  • (Press) trips
  • Equipment with technology
  • payments for travel or the purchase of equipment,

you must now label this if your advertising - or the client - is not immediately recognisable. However, this is a rather vague formulation. That's why I recommend labelling advertising contributions as a matter of principle.

By the way: With my proven
protection packages exclusively for wein.plus members, online shop
online shop operators are protected against these traps and problems at all times!

In addition, my newsletters for wine merchants not only keep you up to date on legal matters, but also offer you helpful formulation suggestions - for example, on the right of withdrawal when selling digital content or instructions on how to check customer ratings in your shop!

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