Mag. Balazs Esztegar LL.M.
Attorney-at-law Vienna

Piaristengasse 41/10
1080 Vienna, Austria
Tel. +43 1 997 4102
Fax +43 1 997 4102-99

Warning due to missing reference to arbitration platform

Since 09.01.2016, the Alternative Dispute Resolution Act (AStG) has introduced new arbitration procedures for consumers and established arbitration boards. The law entails new information obligations for entrepreneurs.

Entrepreneurs nowadays have to fulfil an almost unmanageable number of information and disclosure obligations. This applies even more in the online sector, but the provisions of the AStG do not stop at "offline entrepreneurs" either - at least not if they operate a website.

While participation in the newly created arbitration procedures is not obligatory for entrepreneurs, the information obligations under the AStG must be fulfilled in any case. According to Section 19 AStG, an entrepreneur or company has to inform the consumer about the ADR entity(ies) (arbitration body) by which he is covered, if he (voluntarily) undertakes or is (legally) obliged to involve these entities for the settlement of disputes with consumers. This information must include details of the website address of the relevant ADR entity or entities. Due to Regulation EU/254/2013, which also entered into force on 09.01.2016, a reference to the online dispute resolution platform of the European Union including a link to the website must also be provided. 

Entrepreneurs who do not comply with this obligation to provide information are not only liable to a fine, but also to a warning under competition law. In Germany, there has already been a first court decision on this. In its ruling of 31.03.2016, 14 O 21/16, the Regional Court of Bochum stated that 

since the entry into force of EU Regulation No. 524/2013 on 9 January 2016, there is an obligation to provide information about this ODR platform and to provide a link that is easily accessible for the consumer. 

A violation of this obligation was considered a violation of Section 3a of the German Unfair Competition Act in connection with Article 14 (1) sentence 1 of Regulation No. 524/2013 and therefore constituted a noticeable impairment of the consumer within the meaning of Section 3a of the German Unfair Competition Act, so that a warning for an infringement of competition was justified. 

It is therefore urgently recommended to take this notice seriously and - even if the reasonableness of the regulation in some cases seems questionable - to set a link to the relevant platforms.