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The Higher Regional Court of Schleswig ruled on 9 March 2023 that the operator of an online shop must ensure that a clickable link to the so-called ODR platform, the internet platform for online dispute resolution, is set up and that its functionality is monitored. The court considered a one-month monitoring cycle to be sufficient. If the functionality is not checked at least once a month, there is a culpable breach of the declaration to cease and desist(OLG Schleswig, judgement of 9.3.2023, ref.: 6 U 36/2).

  1. The decision

Following a warning by the plaintiff association, the defendant had undertaken in a cease-and-desist declaration of 30 August 2021, inter alia, to provide its offers of goods with a clickable link to the so-called OS platform – the internet platform for online dispute resolution – and to indicate the base price in a specific form in offers for goods that are sold by weight or in open packaging. On 23.09.2021, the plaintiff found offers of the defendant on E-Bay which, in his opinion, violated the cease-and-desist agreement in both respects. For this reason, the association brought an action for payment of a contractual penalty in the amount of € 3,000.00 on 7.12.2021.

The LG Kiel (judgement of 6.5.2022 – 14 HKO 83/21) had assumed a culpable breach of the obligation to provide proper information on the right of withdrawal. The creation of a clickable link was not sufficient. The defendant was liable for the fault of the employee responsible for setting up the link according to § 278 BGB. On the other hand, the defendant had not breached the obligation to indicate the basic price. Both parties appealed against the decision of the Regional Court.

  1. Infringement of the obligation to link to the ODR platform

In its decision, the OLG Schleswig found that while there was already an objective lack of infringement with regard to the obligation to indicate the basic price, an infringement of the obligation to link to the ODR platform existed, but was not culpable. The culpability of the party liable to cease and desist was rebuttably presumed pursuant to Section 280 (1) sentence 2 BGB. In this context, the OLG Schleswig concluded that the defendant had succeeded in proving exoneration. The defendant allegedly instructed a reliable employee to set the link to the ODR platform, which she had done. In addition, the functionality was allegedly checked again later. Furthermore, the information on the website is said to be checked approximately every two to six weeks. The defendant could not be required to do more than set up a clickable link, check it afterwards and check it again as part of routine checks. In the opinion of the OLG Schleswig, the density of the checks was also sufficient.

  1. Scope of the implementation and control measures

The OLG measured the scope of the monitoring and control obligation according to the importance of the obligation at issue for the protection of consumers and fair business dealings, the enforcement of which the cease-and-desist agreement served. Furthermore, what danger would arise from an omission in breach of duty and, last but not least, how high the risk of a subsequent loss of function of the link would have to be assessed.

Although the provision of the link is obligatory(Article 14(1) of Regulation (EU) No 524/2013), participation in online dispute resolution is not (see recital 26 ibid.). The OLG Schleswig therefore did not consider the importance of the functioning link to be too high. The disadvantage to the consumer caused by the non-functionality of the link was to be weighted as correspondingly low. In the court’s opinion, however, the fact that the defendant did not have to expect changes to the information it had provided was of particular importance. Since there was no concrete risk situation and the significance of the information was rather low, the OLG Schleswig concluded that a routine monthly check of the website was still sufficient.