The importance of the order button on your website

If you offer the option of ordering goods or services on your website, you must warn the consumer that he has a payment obligation as soon as he presses the order button. If you fail to comply with this obligation to provide information, you may not only be fined, but you also have the risk of not being able to demand payment for the goods or services ordered.

Booking site

A German hotel resort has a website where you can book rooms through specialized booking sites. 'A' is a consumer who finds a hotel through such a booking site. He clicks on the image so that he can see if there are still rooms available, view additional information about the facilities that the hotel offers and of course also look for the price. 'A' books 4 double rooms in the hotel on 19 July 2018, for the period 28 May 2019 to 2 June 2019. He does so by clicking the button 'I'm going to book' and then entering his own personal data and that of the other guests and by clicking the 'Complete booking' button.

But on 28 May, 'A' does not show up.
The hotel charges him cancellation costs, in accordance with the terms and conditions, and asks 'A' to pay 2.240, within 5 working days. Since that does not happen, the hotel owner goes to court.

"Order with payment obligation"

According to European Directive 2011/831, a merchant must fulfil two obligations in the case of distance selling by electronic means – i.e. via a website – before placing an order:

the merchant must provide the essential information about the contract immediately before placing the order; and

the merchant must expressly inform the customer that by placing an order, he is entering into a payment obligation.

Was the last obligation met?

The case is submitted to the European Court of Justice, which rules that the order button, or a similar function, must contain a clearly legible and unambiguous indication that placing the order implies an obligation for the consumer to pay the merchant.

The directive explicitly uses the term 'Order with payment obligation', but that is just an example. Member States may impose other wordings, as long as they indicate unambiguously that a payment obligation arises.

German (and Belgian) implementation

In this (German) case, the national legislator had not included any other, and thus no more precise, examples of possible corresponding formulations. From this we can conclude that the merchant is free to choose how the payment obligation is formulated, as long as it is clear that whoever presses the order button triggers a payment obligation.

The German court therefore wanted to know from the European Court of Justice whether the wording 'Complete booking' corresponds with the words 'Order with payment obligation'. Should the term 'Order with payment obligation' be expressly adopted? Or may the circumstances of the ordering process also be taken into account?

The European Court seems to take a strict position here: the wording in question must appear on the button or similar function: in order to judge whether the merchant fulfils this obligation, only the words on that button or similar function may be taken into account. And it is for the national court to determine whether, in everyday language and in the eyes of an average consumer who is normally informed and reasonably cautious and observant, the wording 'Complete the booking' is necessarily and systematically associated with a payment obligation.

Also in our country there are no specific rules for the wording on the order button. But it seems that you should avoid the slightest chance of ambiguity about the payment obligation.