German B2B e-commerce sites used to have to take steps beyond just a website notice, including requesting trade register excerpts from their customers, to exclude consumers as customers. This exempted the seller from consumer protection regulation.
Consumers may buy from such B2B sites as long as they are willing to waive their consumer protection rights, said e-commerce experts Dr. Alexander Bayer and Daniel Widmann of Pinsent Masons, the law firm behind Out-Law.com.
The court was ruling on a case between two office supplies companies which sell online. One firm had previous sued the other and gained a cease and desist order to restrain it from selling online to consumers without informing them of their legal rights.
Rather than publishing those rights on its site, the defendant responded by saying that it only wanted to sell to commercial customers and provided a corresponding notice of the website that needed to be actively acknowledged before purchase.
The first company then hired a lawyer to check whether the other firm was in fact only selling to commercial customers. As he bought items, that lawyer came across statements on each page, stating that the site only sells to businesses. However, at the last stage of the buying process, the lawyer identified himself as a 'private' buyer, and the goods were still sent to him.
The first company argued that this showed the other company to be in violation of the previous cease-and-desist order.
The court ruled that (link in German) the second seller was not in violation of consumer protection laws because it stated on the website that it did not want to sell its products to consumers, but only to commercial customers. According to the court, there are no further technical restrictions necessary that prevent consumers from ordering from a B2B e-commerce shop. Restrictions or checks have been required by courts in the past.
The court also ruled that even if the vendor is obligated by a cease-and-desist declaration not to sell its products to consumers without complying with consumer protection laws, a test purchase by a fake consumer is unlawful.
"This ruling will make it possible for consumers to shop in supposedly B2B sites if they waive their rights," Widmann said.
"According to the ruling, shop owners now have no further duties of care to make sure they do not sell to consumers, other than to include a statement on their website that they exclude consumers from buying," he said.
"This ruling may basically result in e-commerce shops plainly stating that they are not willing to sell to consumers, and letting the buyers acknowledge this via a check box, in order to circumvent the consumer protection rights which then will be waived by the respective buyer," Bayer said.