Although some basic laws are the same for all European Countries, each country in Europe has very specific laws that enterprises should not break in order to avoid legal conflicts. What a luck that the EU Memberstates have harmonized the right of withdrawal. But still this can be very tricky. We always see and find especially conflicts in terms of customer law when we check the online offers of our clients. Most foreign companies are not aware which things are a must have for serious business in Germany. It is not enough just to copy and past the forms that the German Government does provide for instance for the right of withdrawl. The form must get filled very precise to avoid a right of withdrawal of 12 months and 14 days.
Remember: If you do not send a correct filled instruction form for the right of withdrawal to your customers just after they bought your products your customer can revoke the contract within 12 months and 14 days from the date of purchase!
This is a very long time period in which it remains uncertain if you maybe need to refund money or not!
The German law looks complicated for non legal-advisors.The legal notes are stated in §§ 312g, 312d, 355, 356 BGB and Art. 246a EGBGB. It is quite impossible for non legal-advisors even if they are native language speakers to understand all that is stated inside these sections.
We can also only give a basic overview here, to get into the details the withdrawal instruction has to be filled to match your business. A company basically is obligated to:
- give the withdrawal instructions to the cuostumer before he buy a product (see Art. 246a § 4 Abs. 1 EGBGB)
- you can use the form that needs to be filled correctly that is provided with Attachment 1 to Art. 246a EGBGB
- to fill it correctly you need to review your business and the products you sell. You must also inform the customer if a right of withdrawal is excluded because of the facts stated in § 312g Abs. 2 BGB or if the right of withdrawal can expire because of the facts stated in § 356 Abs. 4, 5 BGB
- inform the customer that he can use a form to execute the right of withdrawal. This form is provided with Attachment 2 for Art. 246a EGBGB.
- inform the customer that he needs to pay the shipping cost for returning the products when he has make use of his right of withdrawal
- Inform the customer about the catalogue stated in Art. 246a Abs. 1 EGBG. This is among other things the product specifications, your Identity and place of business (address).
Also you must provide all informations in the native language of the country of the customers you are selling to. This means that the informations must be in German, even when you are an UK based company but you sell on Amazon.de for example.
You can see that there is already a large number of obligations connected to the right of withdrawal. To make your business safe you need to fullfil all legal obligations. Otherwise you run in conflict with the law and two main problems can arise:
1. Your customer can revoke the contract within a time period of 12 months and 14 days according to § 356 Abs. 3 S. 1 BGB, § 356 Abs. 3 S. 2 BGB.
2. Every of your competitor has an injuctive relief against you (the legal claim is statet inside the UWG) and can contact a lawyer to send you a written warning. You need to pay the cost for this process.
Most foreign sellers must also learn that the rights that are guranteed by law to customers have nothing to do with the return policies online sellers are bound to when they sell on plattforms like Amazon or Ebay. A seller should be always aware that there are existing two ways for a customer to send the product back:
- The customer makes use of the return policies the seller must fullfil, example Amazons return policies.
- The customer can always make use of the right of withdrawal which exists parallel to any return policy.
To get a correct filled instruction for the right of withdrawal for your customer and correct filled forms you must provide to your customer please do not hesitat to contact us:
