What information obligations under the FAGG apply to the operator of an online store immediately upon conclusion of the contract?

The Supreme Court has now dealt with this question in a recent decision from 23.01.2018, 4 Ob 5/18s. According to the Supreme Court, consumers in an online store must be informed of the essential characteristics of a product by the trader immediately before submitting their contractual declaration.

In the specific case, the defendant was the operator of an online trading platform and was always in legal contact with consumers. However, it was not possible for the customer to directly view the essential characteristics of products, such as the name of electronic devices or the dimensions of furniture in the “shopping cart”. The potential buyer could only access the detailed view of the respective product with an additional mouse click.

The plaintiff then argued that the defendant had to clearly and prominently inform consumers of the information required under the Distance and Off-Premises Selling Act (Fern- und Auswärtsgeschäfte-Gesetz, FAGG) immediately before they made their contractual declaration and before they were obliged to pay. In its action for injunctive relief, the plaintiff relied on Section 28a KSchG and accused the defendant of breaching the statutory information obligations under Section 8 (1) in conjunction with Section 4 (1) no. 1 FAGG in numerous cases.
The defendant argued that it had complied with its information obligations by giving every customer in its online store the opportunity to call up a detailed description of the product with one click.

The court of first instance upheld the claim. From the obligation of the trader standardized in Section 8 (1) FAGG to inform the consumer of the essential characteristics of the goods or services mentioned in Section 4 (1) Z 1 FAGG immediately before the consumer’s contractual declaration, it can be deduced that the page for completing the order process, which lists the order data again and also contains the “order button”, is the right place for this. In this case, this was the so-called “shopping cart”. The Court of Appeal did not uphold the defendant’s appeal. The Supreme Court confirmed the decisions of the lower courts upholding the action.

In summary, according to the FAGG, in the case of distance contracts concluded via websites, a trader is obliged to inform the consumer about the essential characteristics of the goods or services before the consumer makes a contractual declaration. This is intended to make it clear to the consumer what consequences are associated with clicking the “order button”. However, the brief and incomplete information in the “shopping cart” does not meet the legal requirements.