Web stores have become increasingly popular in recent years. There are large corporations in this market as well as many small merchants serving specific niches. For small traders who are just starting their webshop or only operate it on the side, there are some legal pitfalls to be aware of in order to protect themselves from negative legal consequences – by Valentin Schulte Volkswirt & stud. iur at the law firm Dr. Thomas Schulte, Berlin.
If these things are not considered warnings of the competition threaten, which are connected with Unterlassungserklärungen and high lawyer costs. Many small offerers withdraw shocked from the market after receipt of such a warning. This does not have to be the case and can be avoided by following the legal rules, so that the merchant can concentrate on the essential – selling his goods!
Commercial action vs. private action
In general, the strict obligations apply only to entrepreneurs, i.e. commercial traders. According to § 14 I of the German Civil Code (BGB), an entrepreneur is „a natural or legal person or a partnership with legal capacity that, when concluding a legal transaction, acts in the exercise of its commercial or independent professional activity.“ In conjunction with the wording and telos of Section 2 of the German Value Added Tax Act (UStG), a number of clues crystallize that suggest commercial activity: they manufacture the goods they sell for precisely this purpose of selling them. They buy large quantities of goods in order to resell them afterwards instead of using them themselves. They sell large quantities of goods. You make more than 17.500€ turnover per year.
A trader is obliged to register a trade with the competent authority.
A violation of this obligation is punished according to § 146 Gewerbeordnung (GewO) with a fine of up to 1.000€.
In addition, if certain criteria are met (especially trading companies and merchants), there is an obligation to register in the commercial register.
Obligatory imprint – What must be included?
The mandatory parts of the imprint result from § 5 Telemediengesetz (TMG) and must, according to the law, be „easily recognizable, directly accessible and permanently available“.
- This includes in particular the name and address and, in the case of legal entities, the name of the authorized representative.
- Telephone number, fax number, e-mail address
- Competent register with indication of the corresponding register number
- The sales tax identification number, insofar as this has been assigned
- Special regulations: In the case of trades requiring a permit, the competent supervisory authority. In the case of regulated professions (in particular liberal professions), the professional chamber, the legal job title, the state in which the job title was awarded and the reference to special regulations under professional law.
Information requirements under distance selling law
The definition of a distance contract is derived from § 312c I BGB. According to this, a distance contract is a contract in which „the entrepreneur (…) and the consumer use exclusively means of distance communication for the contract negotiations and the conclusion of the contract“.
Accordingly, most traditional web stores or eBay merchants will have to comply with the additional obligations of distance selling law.
The specific information to be provided by the merchant is derived from § 312d BGB in conjunction with Art. 246a § 1 Introductory Act to the Civil Code (EGBGB) and includes:
- The essential characteristics of the goods or services to a reasonable extent.
- The identity of the entrepreneur see above imprint obligation
- The total price / final price of the goods including all taxes and other charges
- The additional delivery / shipping costs
- The terms of payment, delivery and performance, the date by which the entrepreneur must deliver the goods or provide the service
- The confirmation that there is a legal right of liability for defects
- Information on the conditions of customer service and possible guarantees
- The cancellation policy
Violation of legal obligations – what are the consequences?
Especially due to the Unfair Competition Act (UWG), it can quickly become unpleasant for the operator of a web store or an eBay store if the above-mentioned obligations are violated.
Section 1 of the UWG defines its purpose: „This law serves to protect competitors, consumers and other market participants from unfair business practices.“
However, it is the competitors in particular who make use of their right to protection with the help of a lawyer and issue warnings to the person concerned in the event of breaches of duty. In addition, they usually have a right to cease and desist, which you secure by means of a cease and desist declaration. However, if a cease-and-desist declaration is signed carelessly, high contractual penalties may become due in the further course, so this should always be discussed with a lawyer.
And as if that were not enough, the opposing lawyer also demands compensation for his costs, which can range from a few hundred euros to over a thousand euros. This practice is first of all legal according to § 12 I 2 UWG, but problems can arise if the opposing lawyer sets the amount in dispute too high and thus drives up the costs. Before paying, you should definitely talk to a lawyer to have the legality of the amount in dispute confirmed.
However, the best thing to do is to comply with the legal obligations and thus drive your own business forward without legal disputes.
Valentin Markus Schulte
Economist, stud. iur
Law office Dr. Thomas Schulte
Maltese Street 170
Phone: +49 30 221922020
The Kanzlei Dr. Schulte attorneys is successfully civil-legally since 1995 emphasis in the area of the Internet, Reputations- and competition right active. It represents country widely the interests of individual investors. Supplementing sender data with the Kanzleistandort find you in the imprint on the Internet side www.dr-schulte.de.