How to make a website B2B-compliant? Review of the judgement by the Higher Regional Court of Hamm of 16 November 2016 (court file no. AZ 1-12 U 52/16)

The world of e-commerce is divided into two large areas: On the one hand, there are business enterprises which exclusively deal with other business enterprises (B2B); on the other hand, there are those which primarily offer products or services to consumers (B2C).

1. Legal differentiation between B2C and B2B

The scope of the regulations applied by the legislator is different for these two areas, as consumers require a higher degree of protection. The law provides for a large number of duties to provide information in relation to business enterprises in the B2C area, for example, with regard to information about the enterprise, the conclusion of a contract, the right of revocation or - now - also with regard to the options of extrajudicial dispute settlements. In contrast, things are easier for entrepreneurs in the B2B area, as they are “only” required to comply with the relevant provisions of the German Civil Code (§§ 305 et seq.) in relation to their general terms and conditions of business. Therefore, it can be legally beneficial for entrepreneurs to align their e-commerce platforms exclusively to transactions with other traders.

2. Decision by the Higher Regional Court of Hamm

The Higher Regional Court of Hamm has now made it clear that B2B enterprises must structure their websites accordingly in order to avoid giving the impression that they also provide their services to consumers. In the case ruled on by the Higher Regional Court of Hamm on 16 November 2016, the operator of a website, who offered an access to a database with more than 2,000 recipes subject to a charge, had been sued by a consumer protection association. The operator had not complied with the statutory duty to provide information to consumers, as the operator took the view that she was operating a B2B website. At the right margin of her website, the operator had pointed out that her offer exclusively addressed business enterprises, traders, associations, handicraft businesses, public authorities or self-employed freelancers. In registering for the database, the entry of the company name was no mandatory field.

In addition, the following text was to be clicked when completing the registration. “I hereby accept the general terms and conditions of business and expressly confirm my status as a commercial user”.

The Higher Regional Court of Hamm held that those notes were not sufficient. First, the court made it clear that traders are generally allowed to restrict their offer to the B2B area as a result of the principle of private autonomy under civil law.

The enterprise relation can result from the trade, as well as the type and quantity, of the object of sale. Otherwise, in case of doubt, it must be assumed that the transaction is a consumer transaction. To rebut that assumption, in addition to clear notes at an appropriate place, it must, however, also be warranted that the conclusion of contracts with consumers is excluded to a substantial degree. The provision of information on a website does not meet that requirement if the information can only be read after scrolling the site. Also, the fact that the field “company name” was no mandatory field on the defendant’s website is an indicator that the website was no B2B site.

Furthermore, the reference in the acknowledgement of the general terms and conditions of business which confirms the status as a commercial user is not sufficient. At least, the reference was not displayed at a prominent position. Therefore, consumers would overlook the reference and assume that they would only acknowledge the general terms and conditions of business. The Higher Regional Court of Hamm expressly left it open whether the status as a commercial user would have had to be confirmed by a separate click.

In the case at hand, the content (recipes) also indicated that consumers would believe that the offer also addressed them. In that respect, the defendant’s website did not meet the requirements regarding a B2B website, and the defendant was also required to comply with the regulations regarding consumers.

3. Practical tip

Business enterprises engaged in the electronic B2B area should not rely on the presumption that the large number of duties to provide information in relation to transactions with consumers are irrelevant to them. Unless the enterprise relation explicitly results from the subject matter of the transaction, additional measures must be taken. In particular, consumers should not be able to order products or services. References are only helpful if they are obvious, i.e., in particular, visible without any scrolling, and highlighted.

Contact Person

Dr. Karolin Nelles, LL.M., lawyer, Hanover (Germany)