Judgment;Summary — ECLI:EU:C:2022:269
Date: 2022-04-07
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-249/21 – 1 
Case C-249/21 
Request for a preliminary ruling 
Date lodged: 
21 April 2021 
Referring court: 
Amtsgericht Bottrop (Germany) 
Date of the decision to refer: 
24 March 2021 
Applicant: 
Fuhrmann-2-GmbH 
Defendant: 
B. 
  
[…] Amtsgericht Bottrop (Local Court, Bottrop, Germany) 
Order 
In the matter of 
Fuhrmann-2-GmbH v B. 
the Local Court, Bottrop,  
on 24 March 2021,  
[…] 
ordered as follows: 
I. The proceedings are stayed. 
II. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling on the interpretation of the second subparagraph of 
Article 8(2) of Directive 2011/83/EU of the European Parliament and of the 
Council of 25 October 2011 on consumer rights, amending Council Directive 
93/13/EEC and Directive 1999/44/EC of the European Parliament and of the 
EN 
REQUEST FOR A PRELIMINARY RULING OF 24. 3. 2021 – CASE C-249/21 
 
2  
Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of 
the European Parliament and of the Council (OJ 2011 L 304, p. 64): 
Is the second subparagraph of Article 8(2) of Directive 2011/83/EU to be 
interpreted as meaning that the question whether a button or a similar function – 
the activation of which forms part of the ordering process of a distance contract to 
be concluded by electronic means within the meaning of the first subparagraph of 
that provision and which is not labelled with the words ‘order with obligation to 
pay’ – is labelled with a corresponding unambiguous formulation within the 
meaning of that provision, indicating that placing the order entails an obligation to 
pay the trader, is to be answered solely by reference to the labelling of the button 
or of the similar function? [Or. 2] 
Grounds: 
I. 
The applicant is the owner of the Hotel Goldener Anker in Krummhörn-Greetsiel 
(Germany). The rooms of the hotel are rented out via, inter alia, the website of the 
hotel reservation portal Booking.com. 
[…] [T]he following sequence of events is undisputed: on 19 July 2018, the 
defendant visited the website Booking.com and entered his desired destination 
Krummhörn-Greetsiel, the desired period, from 28 May 2019 to 2 June 2019, and 
the desired number of rooms (four double rooms). The vacant hotel rooms 
corresponding to that request were then displayed to the defendant. Among the 
search results displayed were rooms at the applicant’s Hotel Goldener Anker. The 
defendant then clicked on that hotel, whereupon the available rooms were 
displayed to the defendant together with further information on the facilities, 
price, etc. of the Hotel Goldener Anker for the selected period. The defendant 
selected four double rooms in that hotel and clicked on ‘I’ll reserve’. The 
defendant then entered his personal details and the names of his fellow travellers. 
After that, the defendant clicked on a button labelled with the words ‘Complete 
Booking’. 
The defendant did not appear at the Hotel Goldener Anker on 28 May 2019. 
By letter dated 29 May 2019, the applicant charged the defendant – setting a 
deadline of five working days – cancellation costs (in accordance with its general 
terms and conditions) in the amount of EUR 2 240.00. No payment was made. 
The applicant takes the view that the defendant – through the intermediary of 
Booking.com – concluded a contract for accommodation with the applicant for its 
Hotel Goldener Anker for the travel period from 28 May 2019 to 2 June 2019. In 
particular, the labelling chosen by Booking.com for the ‘Complete Booking’ 
button fulfils the special obligations towards consumers in electronic commerce 
and, in particular, towards the defendant in accordance with the second sentence 
FUHRMANN 
 
3 
of Paragraph 312j(3) of the Bürgerliches Gesetzbuch (German Civil Code; ‘the 
BGB’), read in conjunction with the first sentence thereof. 
The applicant has brought proceedings against the defendant, claiming, in 
particular, payment of a cancellation fee of EUR 2 240.00 for not taking up his 
reservation. [Or. 3] 
II. 
1. 
[…] [statements regarding the stay of proceedings] […] 
2. 
The success of the action hinges on whether a contract between the applicant and 
the defendant has come into being. A contract will have come into being pursuant 
to Paragraph 312j(4) of the BGB in the present case only if the obligations under 
Paragraph 312j(3) have been fulfilled. In the present case, the ‘booking’ was made 
via a button labelled with the words ‘Complete Booking’. 
Paragraph 312j(4) of the BGB, which transposes the third sentence of the second 
subparagraph of Article 8(2) of Directive 2011/83/EU into German law, provides 
that a contract pursuant to Paragraph 312j(2) of the BGB comes into being only if 
the trader fulfils his or her obligation under Paragraph 312j(3) of the BGB. 
a) Since the parties do not dispute that the contract at issue is a distance 
contract to be concluded between a trader and a consumer by electronic means, 
the conclusion of the contract at issue falls within the scope of Paragraph 312j(2) 
of the BGB and Article 8 of Directive 2011/83/EU. 
b) However, the parties are in dispute as to whether the obligations under 
Paragraph 312j(3) of the BGB – which transposes the second sentence of the 
second subparagraph of Article 8(2) of Directive 2011/83/EU into German law – 
have been complied with in the present case. In accordance with that provision, 
the trader is required to structure the ordering situation in such a way that the 
consumer expressly confirms with his or her order that he or she undertakes to 
make a payment (first sentence of Paragraph 312j(3) of the BGB), whereby, in 
accordance with the second sentence of Paragraph 312j(3) of the BGB, in cases 
where the order is placed via a button, that obligation on the part of the trader is 
fulfilled only if that button is labelled in an easily legible manner only with the 
words ‘order with obligation to pay’ or a corresponding unambiguous 
formulation. 
In the context of the second sentence of Paragraph 312j(3) of the BGB, the 
question whether the labelling of a button with the words ‘confirm booking’, that 
is to say, a formulation comparable to the expression used in the present case, 
[Or. 4] satisfies the requirements of the law is assessed differently in the 
REQUEST FOR A PRELIMINARY RULING OF 24. 3. 2021 – CASE C-249/21 
 
4  
commentary in the legal literature. While Schirmbacher […] takes the view that 
the expression using the words ‘confirm booking’ is a corresponding 
unambiguous formulation, Wendehorst […], by contrast, considers that such an 
expression is not correspondingly unambiguous. 
In an unpublished decision placed on the case file by the applicant (judgment of 
31 January 2019, case reference: 16 0 284/17), the Landgericht Berlin (Regional 
Court, Berlin) shares the view taken by Schirmbacher and justifies this, in 
essence, by stating that the labelling of the button must be assessed by ‘taking into 
account the overall circumstances, in particular the structuring of the rest of the 
ordering process, or with a view to determining the type of transaction to be 
concluded’. 
The adjudicating court takes the view that the taking into account of the overall 
circumstances would be permissible only if this were in line with Article 8(2) of 
Directive 2011/83/EU. 
In view of the wording of the directive, the court has considerable doubts as to 
whether that is the case. This is because the second sentence of the second 
subparagraph of Article 8(2) of Directive 2011/83/EU requires the button or 
similar function to be labelled with a formulation ‘indicating that placing the order 
entails an obligation to pay the trader’. The adjudicating court takes the view that 
it must therefore be apparent from the labelling of the button itself that in 
activating the button the consumer triggers, in a legally binding manner, an 
obligation to pay that is incumbent on him or her – even though this is not 
unambiguously expressed in the wording of the second sentence of 
Paragraph 312j(3) of the BGB, which transposes the second sentence of the 
second subparagraph of Article 8(2) of Directive 2011/83/EU into German law. 
A preliminary ruling by the Court of Justice of the European Union is required to 
clarify the question as to whether and to what extent circumstances surrounding an 
ordering or booking process may also be taken into account in the question as to 
the unambiguous nature of the labelling with regard to the establishment of a 
claim for payment made against the consumer. 
That question is material to the decision to be given in the present dispute. 
In so far as circumstances beyond the actual button – such as the circumstances of 
the ordering process before the button is activated – could also establish the 
unambiguous nature of the labelling, the court concluded, proceeding on the basis 
of the reasoning of the Regional Court, Berlin, that the existence of a requirement 
to provide consideration for the service that is the subject of the [Or. 5] 
applicant’s claim results from the overall circumstances of the ordering process, 
since, on the basis of the prices displayed in the preceding ordering steps, an 
average consumer cannot reasonably expect a free-of-charge yet at the same time 
binding ‘booking’ of a hotel room. Accordingly, the obligation under the second 
sentence of Paragraph 312j(3) of the BGB would be regarded as having been 
FUHRMANN 
 
5 
fulfilled, with the result that the provision of Paragraph 312j(4) of the BGB would 
not preclude the effective establishment of a binding commitment on the part of 
the defendant. 
However, in so far as it is not permissible to take into account circumstances 
beyond the button and it must be directly apparent from the labelling of the button 
that the service relationship entered into entails a requirement to provide 
consideration, the court considers the view taken by Wendehorst in the legal 
literature to be preferable, since the labelling of the button with the words 
‘Complete booking’ in the present case does not express with sufficient clarity the 
fact that, in activating the button, the consumer now directly makes a binding 
declaration of intent to conclude a contract for consideration. This is because, in 
the view taken by the adjudicating court, the term ‘booking’, according to 
common parlance, does not necessarily entail the assumption of an obligation to 
pay consideration, but is often also used as a synonym for an advance order or 
reservation for no consideration. Accordingly, the obligation under the second 
sentence of Paragraph 312j(3) of the BGB would have to be regarded as having 
not been fulfilled, with the consequence that, owing to Paragraph 312j(4) of the 
BGB, a binding commitment on the part of the defendant would not be 
established. 
[…]