19. March 2013
In December 2012 Germany’s Federal Ministry of Justice published a revised working draft of a proposed law to implement the EU’s directive on consumer rights. The directive aims to improve and expand consumers’ rights in distance transactions. Consumer protection in the area of distance communications will also be expanded to include text messaging.
The working draft proposes to modify the legal definition of distance contracts found in §312b sub-paragraph 1 German Civil Code. Under the proposed definition the subject matter of contracts will be regulated indirectly. Furthermore, the special provisions for electricity, gas, water and downloadable goods contained in §356 sub-paragraph 2 no.2 BGB-E will no longer be required.
The definitions of “trader” and “consumer” remain untouched in the working draft, despite the EU’s directive requiring a narrower definition.
It remains unclear how contracts which pursue both private and commercial objectives are to be categorised. Under the EU’s directive a presumption will apply under which, taking all the circumstances into consideration, contracts with a dual purpose will be treated as consumer contracts unless their purpose is overwhelmingly commercial. This presumption has not been incorporated into the Ministry’s working draft.
In the area on m-commerce (mobile commerce) the working draft expressly expands consumer protection to distance contracts entered into by means of distance communication. Where distance communication methods allow for limited space or time to display information, traders will be obliged to provide consumers with a minimum amount of information including the main characteristics of the goods or services, duration of the contract, total price, right of withdrawal, the trader’s identity and the procedure for terminating the contract.
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