The importance of the order button on your website
If you offer the option of ordering goods or services on your website, you must
warn the consumer that he has a payment obligation as soon as he presses the
order button. If you fail to comply with this obligation to provide information,
you may not only be fined, but you also have the risk of not being able to
demand payment for the goods or services ordered.
Booking site
A German hotel resort has a website where you can book rooms through specialized
booking sites. 'A' is a consumer who finds a hotel through such a booking site.
He clicks on the image so that he can see if there are still rooms available,
view additional information about the facilities that the hotel offers and of
course also look for the price. 'A' books 4 double rooms in the hotel on 19 July
2018, for the period 28 May 2019 to 2 June 2019. He does so by clicking the
button 'I'm going to book' and then entering his own personal data and that of
the other guests and by clicking the 'Complete booking' button.
But on 28 May, 'A' does not show up.
The hotel charges him cancellation
costs, in accordance with the terms and conditions, and asks 'A' to pay 2.240€,
within 5 working days. Since that does not happen, the hotel owner goes to
court.
"Order with payment obligation"
According to European Directive 2011/831, a merchant must fulfil two obligations
in the case of distance selling by electronic means i.e. via a website
before placing an order:
the merchant must provide the essential information about the contract
immediately before placing the order; and
the merchant must expressly inform the customer that by placing an order, he is
entering into a payment obligation.
Was the last obligation met?
The case is submitted to the European Court of Justice, which rules that the
order button, or a similar function, must contain a clearly legible and
unambiguous indication that placing the order implies an obligation for the
consumer to pay the merchant.
The directive explicitly uses the term 'Order with payment obligation', but that
is just an example. Member States may impose other wordings, as long as they
indicate unambiguously that a payment obligation arises.
German (and Belgian) implementation
In this (German) case, the national legislator had not included any other, and
thus no more precise, examples of possible corresponding formulations. From this
we can conclude that the merchant is free to choose how the payment obligation
is formulated, as long as it is clear that whoever presses the order button
triggers a payment obligation.
The German court therefore wanted to know from the European Court of Justice
whether the wording 'Complete booking' corresponds with the words 'Order with
payment obligation'. Should the term 'Order with payment obligation' be
expressly adopted? Or may the circumstances of the ordering process also be
taken into account?
The European Court seems to take a strict position here: the wording in question
must appear on the button or similar function: in order to judge whether the
merchant fulfils this obligation, only the words on that button or similar
function may be taken into account. And it is for the national court to
determine whether, in everyday language and in the eyes of an average consumer
who is normally informed and reasonably cautious and observant, the wording
'Complete the booking' is necessarily and systematically associated with a
payment obligation.
Also in our country there are no specific rules for the wording on the order
button. But it seems that you should avoid the slightest chance of ambiguity
about the payment obligation.