A recent Court decision “Fuhrman-2” of the European Court of Justice (ECJ) of 7 April 2022 (n°C-249/21) brought an important clarification on consumer protection when completing a booking online.

Facts

A hotel in Germany was putting its rooms up for rental, among others, through the well-known online platform booking.com.

In 2018, a consumer visited the platform to search for hotel rooms in the area where that hotel was located. The search results displayed included rooms of that specific hotel. The consumer then clicked on the image corresponding to that hotel, whereupon the available rooms were displayed together with additional information relating, among others, to the facilities and prices offered by that hotel for the selected period. He then clicked first on the ‘I’ll reserve’ button and entered his personal details and the names of the individuals accompanying him, before clicking on a second button labelled with the words ‘complete booking’.

The consumer did not appear at the hotel at the dates he booked. The hotel then sent an invoice to the consumer for the cancellation fees, which the consumer did not pay.

The hotel owner brought an action against the consumer for the payment of the cancellation fees in front of the German Courts.

Legal background on consumer protection

Directive 2011/83 on consumer rights (“Directive 2011/83”) foresees certain protections for consumers when concluding a contract online over distance (consumer rights when concluding contracts over distance were already protected by previous EU Directives, but Directive 2011/83 simplified and updated the preexisting rules).

More specifically, Article 8 of the Directive 2011/83 foresees that:

‘If a distance contract to be concluded by electronic means places the consumer under an obligation to pay, the trader shall make the consumer aware in a clear and prominent manner, and directly before the consumer places his order, of the information provided for in points (a), (e), (o) and (p) of Article 6(1).

The trader shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. If placing an order entails activating a button or a similar function, the button or similar function shall be labelled in an easily legible manner only with the words “order with obligation to pay” or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader. If the trader has not complied with this subparagraph, the consumer shall not be bound by the contract or order.’

Directive 2011/83 had to be implemented into the national law of each EU Member State by the end of 2013. In Luxembourg, it was implemented in the Consumer Code (Code de la Consommation) in 2014.

Preliminary question

The German Courts were doubtful that the conditions foreseen by the Directive 2011/83 were met in the present case and therefore raised a preliminary question with the CJUE to clarify how the button activated to place the order should be labelled. More specifically: i) if only the words that appear on the button shall be taken into account or that similar function should be taken into account or whether the overall circumstances of the ordering process can be taken into account and ii) if terms used such as “complete booking” can be considered as similar to “order with obligation to pay”.

Decision of the Court

The ECJ reminded that  where a distance contract is concluded by electronic means through an ordering process and entails an obligation on the part of the consumer to pay, the trader must, first, provide that consumer, directly before the placing of the order, with the essential information relating to the contract and, secondly, explicitly inform that consumer that, in placing the order, he or she is bound by an obligation to pay.

 The ECJ confirmed that only the words that appear on that button or similar function must be considered for the purpose of determining whether the trader has fulfilled its obligation to ensure that the consumer, when placing his or her order, explicitly acknowledges that the order implies an obligation to pay.

The ECJ however did not explicitly confirm whether the terms “complete” booking” are equivalent to “order with obligation to pay”. The CJUE decided that German Courts has to verify whether the term ‘booking’ is, in the German language, both in everyday language and in the mind of the average consumer who is reasonably well informed and reasonably observant and circumspect, necessarily and systematically associated with the creation of an obligation to pay. If it is not, the expression ‘complete booking’ would have to be held to be ambiguous, meaning that it could not be regarded as a formulation corresponding to the words ‘order with obligation to pay’ referred to the Directive 2011/83.