According to Article 8(2) second subparagraph of the Directive 2011/83 of 25 October 2011 on consumer rights, in case of distance contracts concluded by electronic means the trader ensures 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 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 corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader.
Failing to meet the above obligation means that the consumer is not bound by the contract.
The CJEU in the case C-249/21 considered the preliminary ruling of the German court which was whether the words “complete booking” displayed on the ordering button on the website www.booking.com meet the requirement defined in the directive (and state laws implementing it).
In principle, the above issue is for national court to decide, however, the CJEU provided certain interpreting instructions. Most of all, the assessment should include only the word put on the button, regardless of the overall circumstances of the booking process.
The national court should verify whether the word “booking” in German – 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 the term “booking” is not always associated with payment, then the expression “complete booking” would have to be held ambiguous and that the contractual relationship was not concluded.
Summing up, in the judgment of 7 April 2022, the CJEU stated that in order to determine – in the context of an ordering process relating to the conclusion of a distance contract by electronic means – whether formulation as “complete booking” is a formulation “corresponding” to the words “order with obligation to pay within the meaning of that provision, it should be based only on the content of the formulation displayed on that button or similar function.
– judgment of the ECJU of 7 April 2022, case number C-249/21 „Fuhrmann-2