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The sale of goods or digital content via an online shop is regulated in Germany by numerous information obligations. Many online traders are overwhelmed by these obligations and therefore need support when implementing their legal obligations. It is therefore even more important that the online shop system used by the trader does not unnecessarily complicate the implementation of those legal obligations. Therefore, the shop system should, as a prerequisite, comply with the most important statutory information obligations even if the basic technical equipment is used. To this end, the IT law firm (IT-Recht Kanzlei) has prepared the following catalogue of audit criteria, which provides the audit basis for the legal audit of the shop system carried out by the IT Law firm (IT-Recht Kanzlei).

Just like the state of the art, the legal requirements for online shops providers can change again and again. This may be due to changes in legislation or to changes in the jurisdiction of the highest courts in the area of e-commerce. The IT law firm (IT-Recht Kanzlei) therefore reserves the right to continuously adapt the following audit catalogue and thus also the scope of examining shop systems to the changing legal requirements.

A. Examination criteria regarding B2C Online Shops

Many online shops are aimed at both consumers (B2C) and professionals (B2B). If no isolated area or even a separate online shop is provided for professionals, the online shop must comply with the stricter legal requirements of a B2C online shop in its design.

I. Placement of legal texts

The shop system must allow the correct placement of various legal texts that are relevant for the online shop.

1) Relevant legal texts

The following legal texts are particularly relevant for B2C online shops:

  • Imprint (provider identification)
  • Privacy policy
  • General terms and conditions
  • Cancellation policy and cancellation form
  • Payment information
  • Shipping information
  • Note about the OS-platform (optional, because it may be placed in the imprint)
  • Note according to the Battery Act (Batteriegesetz) (only if batteries are supplied).
  • Notice according to the Electrical and Electronic Equipment Act “ElektroG” (only if the trader is subject to the special notice obligations according to the ElektroG).

2) Availability of legal texts

The legal texts mentioned must each be able to be displayed on a separate subpage of the online shop and be directly accessible via a clickable link in the header or footer of the online shop.

In addition, the data protection declaration must also be directly accessible via a clickable link, designated for this purpose on the online order form and, if applicable, via an existing online contact for. A checkbox to be activated additionally by the client is possible but not mandatory.

General terms and conditions and instruction for cancellation and cancellation form must also be available during the order process via a clickable link designated accordingly. A checkbox to be activated additionally by the client is possible but not mandatory.

3) Cookie banner

A cookie banner must be stored on the start page of the online shop. The cookie banner must not conceal or block access to any other (mandatory) information to be made available to the user. For example, the cookie banner must therefore not hide access to your imprint or the website's data protection declaration, since this mandatory information always has to be available and easily accessible (see https://www.it-recht-kanzlei.de/dsgvo-cookie-banner.html).

II. Price presentation

The shop system must enable a legally compliant price presentation. Both the specifications of the German Price Indication Ordinance and tax law aspects must be considered.

1) VAT note

It should be possible that prices are provided with a reference to the sales tax, if sales tax is incurred. If there is no value added tax, e.g. due to the small business regulation pursuant to Section 19 para 1 German Value-Added Act, a corresponding reference must be possible alternatively.

The sales tax notice must appear at the latest on the page of the online shop which serves to place the goods in the virtual shopping basket for the first time. The reference can be made in conjunction with the price or in the form of an asterisk, which is resolved in the footer of the relevant shop page.

2) Shipping costs

The prices should provide an indication of any additional shipping costs. The actual shipping costs can be indicated directly with the price. Alternatively, a direct link to an online shipping information page is also feasible which specifies the shipping costs

The shipping information must appear at the latest on the page of the online shop which serves to place the goods in the virtual shopping basket for the first time. The reference can be made in conjunction with the price or in the form of an asterisk, which is resolved in the footer of the relevant shop page.

3) Basic prices

Anyone who offers consumers goods for commercial purposes or on a regular basis in terms of weight, volume, length or surface in prepackages, open packages or as sales units without wrapping, must state not only the total price but also the price per unit of quantity including added tax and other price components (basic price) in the immediate vicinity of the total price. The shop system should therefore allow the indication of basic prices if necessary due to the nature of the goods offered. The basic price must be displayed at each place of the online shop where the corresponding total price of the goods is also displayed (excluding the order process).

4) Bulk prices/variant prices

In some cases, traders offer different prices for a product depending on the order quantity or variant. The shop system should therefore allow the display of scaled/variant prices, adjusted on the article page according to the quantity/variant selected by the client. A price adjustment when calling up the virtual shopping basket would not be enough.

III. Product-specific labelling requirements

Online retailers are subject to different labelling obligations depending on the range of goods they offer. This applies in particular to the following product groups:

  • Batteries
  • Paints and varnishes
  • Household appliances
  • Lamps and luminaires
  • Cosmetic
  • Food
  • Food supplements
  • Motor vehicles
  • Textiles

In this respect, the shop system must enable the legally required product labelling regarding goods displayed in the online shop. Care must be taken to ensure that the relevant information is presented to the client on a page he is obliged to pass before placing the goods in the virtual shopping basket. If a shopping cart button is already available on the summary page (gallery page) of the shop, the relevant product information should also be available at this site.

IV. Order process (checkout)

The order process of the online shop must be designed in such a way that it meets the relevant legal requirements.

1) Guest orders

Due to the legal requirements pursuant to the GDPR, the shop must allow guest orders. Accordingly, the establishment of a user account by the client must not be a mandatory prerequisite for the execution of an order via the online shop.

2) Possibilities for changes

In the course of the order process, the client should be able to distinguish beyond doubt, for example, whether he is placing goods in a virtual shopping cart or whether he is making a legally binding declaration of intent regarding the purchase of goods. If a shopping basket system exists, the client must always have the following options:

  • Placing new goods in the shopping cart and
  • Consult or modify/delete the goods in the shopping cart.

In a possible shopping cart system, the final price for all goods is to be indicated, including the freight costs and COD charges.

3) Online order form

The online order form must be designed in a way that only data is requested that is absolutely necessary for the processing of the order.
Mandatory fields should be marked accordingly to allow the client to easily see which data is mandatory to enter for his order and which data can be entered voluntarily.

Due to the legal requirements of the Geoblocking regulation, it should be possible to select addresses in EEA member states as billing addresses irrespective of the trader's delivery area.

4) Final order page

The content and structure of the final order page must comply with the legal requirements of the so-called button solution. In particular, the following points must be observed (see here):

On the final order page, the essential terms for the contract must be clearly summarized again.

The final button must be clearly legible and labelled with nothing other than the words "order payable" or with a corresponding unambiguous wording.
There must be no separating elements between the summary of the order and the final button.

V. Subscribe function for e-mail newsletters

If the shop system provides a registration function for e-mail newsletters, it must be designed in a way that the legal minimum requirements for an effective declaration of consent for e-mail advertising will be fulfilled (see https://www.it-recht-kanzlei.de/unzureichende-anmeldung-newsletter.html).
Furthermore, it must be possible to implement the so-called double opt-in procedure for e-mail newsletter registration. In this case, the holder of the e-mail address registered on the website must also confirm, via a link sent to him by e-mail, that his e-mail address may be included in the newsletter distribution list.

B. Audit criteria for B2B online shops

For online shops, which are not aimed at consumers but exclusively at professionals, the legal requirements are lower, as consumer information obligations do not apply. The main challenge for B2B shops is the way to technically design the shop in a manner that consumers do not have the opportunity to make purchases via the B2B shop (see https://www.it-recht-kanzlei.de/reiner-b2b-shop-anleitung.html).

I. Placement of legal texts

The shop system must allow the correct placement of various legal texts relevant for the online shop.

1) Relevant legal texts

The following legal texts are particularly relevant for B2B online shops:

  • Imprint (provider identification)
  • Privacy statement
  • General terms and conditions
  • Payment information
  • Shipping information

2) Availability of legal texts

The legal texts mentioned must each be able to be displayed on a separate subpage of the online shop and be directly accessible via a clickable link in the header or footer of the online shop.

In addition, the data protection declaration must also be directly accessible via a clickable link designated accordingly on the online order form and any online contact form that may be available. A checkbox to be activated additionally by the client is possible but not mandatory.

3) Cookie banner

A cookie banner must be stored on the start page of the online shop. The cookie banner must not conceal or block access to any other (mandatory) information to be made available to the user. The cookie banner must therefore not hide access to your imprint or the website's data protection declaration, since this mandatory information must always be available and easily accessible (see https://www.it-recht-kanzlei.de/dsgvo-cookie-banner.html).

II. Order process (checkout)

The order process of the online shop must be designed in a way that it meets the relevant legal requirements.

1) Possibilities for changes

In the course of the ordering process, the client should be able to distinguish beyond doubt, for example, whether he is placing goods in a virtual shopping cart or whether he is making a legally binding declaration of intent regarding the purchase of goods. If a shopping basket system exists, the client must always have the following options:

  • Placing new goods in the shopping cart and
  • Consult or modify/delete the goods in the shopping cart.

2) Online order form

The online order form must be designed in a way that only data is requested that is necessary for the processing of the order.

  • Mandatory fields should be marked accordingly to allow the client to easily see which data is mandatory to enter for his order and which data can be entered voluntarily.
  • Due to the legal requirements of the Geoblocking regulation, it should be possible to select addresses in EEA member states as billing addresses irrespective of the trader's delivery area.

III. Subscribe function for e-mail newsletters

If the shop system provides a registration function for e-mail newsletters, it must be designed in a way that the legal minimum requirements for an effective declaration of consent for e-mail advertising will be fulfilled (see https://www.it-recht-kanzlei.de/unzureichende-anmeldung-newsletter.html).

Furthermore, it must be possible to implement the so-called double opt-in procedure for e-mail newsletter registration. In this case, the holder of the e-mail address registered on the website must also confirm, via a link sent to him by e-mail, that his e-mail address may be included in the newsletter distribution list.

IV. Technical measures to exclude consumers

1) Reference to limitation of customer base

First, it must be possible to point out clearly and easily on every shop page (e.g. in the header or footer) that the group of purchasers is restricted.

2) Confirmation of professional status in the checkout procedure

The purchaser should be made aware that only professionals are eligible as purchasers. To this end, a respective notice must be repeated on the final order page of the checkout procedure. A corresponding checkbox on the final order page must be confirmed to complete the order.

3) Securing suitable security and control measures

The online order form must be designed in a way to make sure that in case of filling in mandatory fields only data is requested that solely professionals can dispose of (e.g. indication of company name, indication of VAT ID number, indication of commercial register data).

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