Judgment;Summary — ECLI:EU:C:2020:498
Date: 2020-06-25
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation  C-380/19 — 1 
Case C-380/19 
Request for a preliminary ruling 
Date lodged: 
15 May 2019 
Referring court: 
Oberlandesgericht Düsseldorf (Higher Regional Court of 
Düsseldorf, Germany) 
Date of the decision to refer: 
9 May 2019 
Applicant and appellant: 
Bundesverband der Verbraucherzentralen und 
Verbraucherverbände — Verbraucherzentrale Bundesverband e.V. 
Defendant and respondent: 
Deutsche Apotheker- und Ärztebank eG 
  
[...] 
HIGHER REGIONAL COURT OF DÜSSELDORF 
ORDER 
In the case of 
Bundesverband der Verbraucherzentralen und Verbraucherverbände — 
Verbraucherzentrale Bundesverband e.V. 
applicant and appellant, 
[...] 
v 
Deutsche Apotheker- und Ärztebank eG, 
defendant and respondent, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 9.5.2019 — CASE C-380/19 
 
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[...] 
the 20th Civil Chamber of the Higher Regional Court of Düsseldorf at the hearing 
of 12 March 2019 [...] [Or. 2] [...] 
made the following order: 
I. 
The proceedings are stayed. 
II. 
The Higher Regional Court of Düsseldorf refers the following questions 
concerning the interpretation of Directive 2013/11/EU of the European Parliament 
and of the Council of 21 May 2013 on alternative dispute resolution for consumer 
disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC 
(Official Journal 2013, L 165, p. 63) (‘the Directive’) to the Court of Justice of the 
European Union for a preliminary ruling: 
1. Does the information obligation under Article 13(2) of the Directive, to 
provide the information pursuant to Article 13(1) in the general terms and 
conditions, already arise when the trader makes the general terms and 
conditions available for download on his website, on which no contracts are 
concluded? 
2. If Question 1 is answered in the affirmative: Does the trader meet his 
obligation to provide the information in the general terms and conditions in 
such a case if he provides the information not in the file made available for 
download, but elsewhere on the company’s website? 
3. Does the trader meet his obligation to provide the information in the general 
terms and conditions if he provides the consumer with – in addition to a 
document containing the general [Or. 3] terms and conditions – a list of 
prices and services also drawn up by the trader in a separate document 
containing the information pursuant to Article 13(1) of the Directive? 
Grounds 
A) 
1 The applicant is the umbrella association of all 16 consumer advice centres and 25 
further consumer- and social-oriented organisations in Germany. It is included in 
the list of qualified entities under Paragraph 4 of the Unterlassungsklagegesetz 
(Injunction Action Law). The defendant is a cooperative bank. 
2 The defendant operates a website under the address www.apobank.de. It is not 
possible to conclude contracts on the website. In the website’s legal notice, the 
defendant provides information, in a manner not objected to by the applicant in 
BUNDESVERBAND DER VERBRAUCHERZENTRALEN UND VERBRAUCHERVERBÄNDE 
 
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this respect, on its willingness or obligation to take part in a dispute resolution 
procedure before a consumer conciliation body. The defendant also provides the 
option of downloading the general terms and conditions as a PDF document. This 
document does not contain any information on the willingness or obligation to 
take part in a dispute resolution procedure before a consumer conciliation body. 
3 If the defendant wishes to include its general terms and conditions in a contract, 
the consumer receives, in addition to the document containing the general terms 
and conditions, a list of prices and services also drawn up by the defendant, on the 
reverse of which it provides information on its willingness to take part in dispute 
resolution procedures. 
4 The applicant is of the opinion that this business practice is in breach of 
Paragraph 36(2) No 2 of the Verbraucherstreitbeilegungsgesetz (Consumer 
Dispute Resolution Law; VSBG), as the information should be provided in the 
general terms and conditions. 
5 The Regional Court dismissed the action by which the applicant claimed that the 
defendant should be ordered, on pain of specified judicial enforcement measures, 
to desist from [Or. 4] the practice, in the scope of business dealings with 
consumers, of not providing information in the general terms and conditions used 
as to whether there is a willingness or obligation to take part in a dispute 
resolution procedure before a consumer conciliation body, and to reimburse the 
applicant with its pretrial costs. As grounds for its decision, the Regional Court 
essentially stated that the business practice objected to by the applicant was not in 
breach of Paragraph 36(2) VSBG. This required the provision of the information 
under Paragraph 36(1) VSBG when general terms and conditions were used. The 
publication of the general terms and conditions on the website did not constitute 
use, because use required one contracting party to provide the other with the 
general terms and conditions upon conclusion of a contract. Furthermore, the 
provision of a separate information sheet together with the general terms and 
conditions upon conclusion of a contract satisfied the requirements of 
Paragraph 36(2) No 2 VSBG. This is because it was a matter of the individual 
case to assess whether and what general terms and conditions would be used. 
Those general terms and conditions could also consist of several sets of clauses. 
The information on the dispute conciliation body could also constitute a general 
condition by itself. Finally, the defendant had also satisfied its obligation to 
provide information as the operator of a website under Paragraph 36(2) No 1 
VSBG. Under Article 13(2) of the Directive, the website was the primary location 
for the publication of the information. 
6 The applicant challenges that decision with its appeal, by which it maintains its 
claim at first instance. It argues that use within the meaning of Paragraph 36(2) 
No 2 does not require a specific conclusion of contract. The only decisive factor 
was whether the trader even had general terms and conditions. The publication on 
the website therefore already established at that time an obligation to provide 
information in the general terms and conditions. The information should also be 
REQUEST FOR A PRELIMINARY RULING OF 9.5.2019 — CASE C-380/19 
 
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provided to those consumers who had not yet had dealings with the defendant 
concerning a specific conclusion of contract. Therefore, the provision of the 
information together with the general terms and conditions was not sufficient. The 
reference to the information on the website failed to recognise that the obligation 
was to provide information on the website and [Or. 5] in the general terms and 
conditions simultaneously. At first instance, it argued that the provision of a 
separate information sheet with the general terms and conditions was not 
sufficient because, according to the Directive, the information was to be provided 
in the general terms and conditions. Finally, the information in the general terms 
and conditions themselves was also significant because the consumers would 
attach particular importance to them. The consumers would keep or securely store 
them, to be able to access them precisely in the event of a dispute. 
7 The defendant disputes this and defends the judgment at first instance as being 
correct. 
B) 
8 The provisions of German law that are relevant to the assessment of the dispute 
are worded as follows: 
Paragraph 36 of the Gesetz über alternative Streitbeilegung in 
Verbrauchersachen (Law on alternative dispute resolution in consumer 
matters; VSBG) — General obligation to provide information: 
(1) A trader who maintains a website or uses general terms and conditions shall, 
in an easily accessible, clear and comprehensible manner, 
1. inform the consumer of the extent to which he is willing or obliged to take 
part in dispute resolution procedures before a consumer conciliation body 
and 
2. if the trader has committed himself to taking part in a dispute resolution 
procedure before a consumer conciliation body, or if he is obliged to take 
part on the basis of legal provisions, he shall refer the consumer to the 
competent consumer conciliation body; the reference must contain 
information on the address and website of the consumer conciliation body 
and a declaration by the trader that he will take part in a dispute resolution 
procedure before that consumer conciliation body. 
(2) The information under subparagraph 1 must 
1. appear on the trader’s website, if the trader maintains a website, [Or. 6] 
2. be provided together with his general terms and conditions, if the trader uses 
general terms and conditions. 
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(3) A trader who employed ten or fewer persons on 31 December of the 
previous year is exempted from the obligation to provide information under 
subparagraph 1 number 1. 
9 The success of the applicant’s appeal depends on the response to the questions 
referred, since the provision of Paragraph 36 VSBG, which transposes Article 13 
of the Directive, is to be interpreted in accordance with the Directive. According 
to its wording, Paragraph 36(2) VSBG stipulates that the information be provided 
‘together with’ the general terms and conditions, if the trader uses general terms 
and conditions. The wording of the Directive differs from this since, under 
Article 13(2) of the Directive, the information is to be provided, if applicable, in 
the general terms and conditions. The formulation that the information must be 
provided in the general terms and conditions — and specifically not merely 
together with the use thereof — also corresponds to other language versions of the 
Directive. For example, the English version reads ‘if applicable, in the general 
terms and conditions’ and the French version reads ‘le cas échéant, dans les 
conditions générales’. 
10 In the present case, this first of all raises the question of how ‘if applicable’ is to 
be interpreted, that is to say, when a trader within the meaning of Paragraph 36 
VSBG ‘uses’ general terms and conditions. In that respect, the Regional Court has 
interpreted the term within the meaning of the German Civil Code, according to 
which the user uses general terms and conditions by providing them to the other 
contracting party upon conclusion of a contract. On the other hand, it is reasonable 
to interpret the obligation under Article 13(2) of the Directive as meaning that the 
very existence of general terms and conditions already gives rise to the need to 
provide information on dispute resolution therein. That follows from the 
comparison with the other case of the obligation to provide information, which 
also concerns the mere presence of a website. 
11 If it follows from the foregoing that making the general terms and conditions 
available on the website for download already triggers the obligation to provide 
information, this raises the question of how ‘in’ the general terms and conditions 
is to be understood [Or. 7] within the meaning of the Directive. That is the 
purpose of the second question referred. The defendant has indisputably met its 
obligation as the operator of a website to provide information on dispute 
resolution. It is, however, in question whether that information also constitutes 
information in the general terms and conditions, where the general terms and 
conditions are made available for download. As correctly pointed out by the 
applicant at first instance, this is undermined by the fact that the consumer will 
download the general terms and conditions as intended and precisely will not find 
the information therein. 
12 The final question raised, independently of the foregoing, is whether the 
information within the meaning of the Directive is provided ‘in’ the general terms 
and conditions if a separate information sheet is in each case enclosed therewith. 
In this respect, the Regional Court rightly pointed out that the use of multi-part 
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general terms and conditions or various general terms and conditions is possible 
and customary and the additional information sheet then also constitutes part of 
the general terms and conditions. On the other hand, the applicant’s view means 
that the information must be provided in every part of the general terms and 
conditions. However, that is supported by the fact that the consumer will usually 
keep the general terms and conditions with particular care and will assume that 
they contain information on the willingness to take part in an alternative dispute 
resolution. This guarantee is not provided to the same extent in the case of a list of 
prices and services that is usually subject to more frequent changes. 
[...]