The Court of Justice of the European Union has clarified the conditions leading to an obligation to pay for a consumer who has concluded a contract at a distance electronically, in a judgment delivered on Thursday 7 April (Case C-249/21).
A German company, as owner of a hotel, demands, under its terms and conditions, that an individual pay a cancellation fee of €2,240, because that person did not show up on the first day of what the company considers to be a properly made reservation.
The consumer consulted the hotel information (rooms, facilities, prices) via the online platform Booking.com, then, after clicking on the ‘I’ll reserve’ button, filled in personal data, after which he clicked on the ‘complete booking’ button.
In its judgment, the Court recalls that, according to the Consumer Rights Directive (2011/83), where a distance contract is concluded electronically by means of an ordering process and is accompanied by an obligation to pay, the trader must (1) provide the consumer, directly before the order is placed, with the essential information relating to the contract and (2) explicitly inform him that, by placing the order, a payment obligation applies.
For example, the order button - and only the order button - should be easily readable and unambiguous. As an example, the Directive indicates the formula ‘order with obligation to pay’. However, Member States may allow a trader to use any other similar formula, provided that it is unambiguous in informing the consumer that by placing the order he explicitly acknowledges his obligation to pay.
The court which referred the case must ascertain whether, in everyday German language and in the mind of the average consumer, the term ‘booking’ is systematically associated with the creation of a payment obligation. Otherwise, it will have to note the ambiguity of the phrase ‘complete booking’, so that this phrase will not be regarded as analogous to the phrase ‘order with obligation to pay’.
See the judgment: https://aeur.eu/f/15n (Original version in French by Mathieu Bion)