Importance of the order button on your website
July 2022 – If you offer the possibility to order goods or services on your website, you must warn the consumer that he has an obligation to pay as soon as he presses the order button. If you do not respect this information obligation, you not only risk a fine, but you also risk not being able to demand payment for the goods or services ordered.
Reservation website
A German hotel complex has a website on which rooms can be booked via specialized booking sites. "A" is a consumer who finds a hotel via such a booking site. He clicks on the image so that he can see if there are still rooms available, looks at additional information about the hotel's infrastructure and of course also searches for the price. On July 19, 2018, "A" books 4 double rooms in the hotel for the period from May 28, 2019 to June 2, 2019. He does so by clicking on the "I book" button, then entering his and other guests' details and clicking on the "Finalize booking" button.
But on May 28, "A" does not show up at the hotel.
The hotel charges him a cancellation fee according to the terms and conditions and asks "A" to pay 2 240 euros within 5 working days. Since "A" does not pay, the hotel owner goes to court.
Order with payment obligation
According to the European Directive 2011/831, every trader is obliged to comply with two obligations in the case of a distance sale concluded electronically - i.e. via a website - before an order is placed:
a) the trader must provide the essential information concerning the contract immediately before the order is placed; and
b) the trader must explicitly inform the customer that any order placed involves an obligation to pay.
Was this last obligation respected?
The case is before the Court of Justice of the European Union, which considers that the order button or a similar function must bear an easily readable and unambiguous statement indicating that placing the order obliges the consumer to pay the trader.
The directive explicitly uses the words "Order with obligation to pay", but this is only one example. Member States may impose other wording, as long as it unambiguously indicates that it results in an obligation to pay.
German (and Belgian) implementation
In this (German) case, the national legislator did not include any other examples and therefore no more specific examples of possible compliant wording. From this we can deduce that the merchant is free to choose how he formulates the payment obligation, as long as it is clear that the person who presses the order button is entering into a payment obligation.
The German judge therefore wanted to know whether the Court of Justice of the European Union considers the wording "Finalize reservation" to be equivalent to the wording "Order with payment obligation". Does the wording "Order with payment obligation" have to be explicitly stated on the button? Or can the terms of the order procedure also be taken into account?
The Court of Justice of the European Union seems to take a strict view on this: the wording in question must appear on the button or on a similar function: only the words on the button or on a similar function can be taken into account when judging whether the merchant is complying with his obligation. And it is up to the national judge to judge whether, in everyday language and in the eyes of an average consumer, normally informed and reasonably attentive and aware, the wording "Finalize the reservation" is necessarily and systematically associated with the creation of an obligation to pay.
In our country too, there are no specific rules concerning the wording to be used on the order button. However, it would seem that it would be better to avoid any risk of ambiguity concerning the payment obligation.
