We've all been there - trying to decide whether to go for the hotel which promises nicer breakfast or the one with free cancellation until 24 hours before arrival. We don't know what happened to mr B, who booked an expensive hotel in a German village and didn't show up to take possession of his room(s). We do know, however, that he did not cancel his reservation in time - after which he was confronted with a hefty bill for a five-night stay he had reserved and made no use of. This led to an interesting decision by the CJEU last week, in case C-249/21.
The hotel reservation in this case took place via booking.com, which displays a final button: "complete booking" once a user has filled in all necessary identifiers. Does this mean that once they have clicked the button, a consumer has in fact entered a contract with the facility they selected?
According to the national court that referred this case to the CJEU, the dispute depends on whether the words ‘complete booking’ (in the German original: Buchung abschließen), satisfies the obligation laid down in Paragraph 312j(3) of the BGB, which requires the trader to display in an easily legible manner on the button for placing orders the words ‘order with obligation to pay’ or a corresponding unambiguous formulation. This provision implements the information obligations established by the second subparagraph of Article 8(2) of Directive 2011/83; the next section, namely Paragraph 312j(4) of the BGB, provides that a contract is then concluded if the information/warning was correctly provided.
Is "complete booking", in other words, a sufficient clue that a contract is about to be concluded, or should more explicit language be adopted given the fact that "booking" in everyday language can easily refer to a non-committal form of reservation with no contract being concluded?
The CJEU recalls that the Consumer Rights Directive must be interpreted with an eye to the achiement of a high level of consumer protection; in this spirit, however, any formulation that will deliver the essential notice to the consumer will be apt to comply with the Directive's requirement: while the Directive itself mentions "order with an obligation to pay" as an example of wording that can convey the necessary message, according to the court this does not mean that service providers have to reproduce the exact same wording (para 26-27). However, according to the Court it is also clear from the wording of the Directive that the button itself must display sufficiently unambiguous language - the context alone, or previous stages in the interaction between consumer and trader, cannot make good for insufficiently clear communication at the late stage since the Directive's article 8 refers to information to be explicitly provided just before the contract is finalised (para 28-29, with reference to recitals).
In conclusion, thus, it is for the referring court to ascertain whether, in the day-to-day use of the German language, "Buchung abschließen" can be considered to carry an unambiguous meaning which is tantamount to "order with an obligation to pay". In doing so, the court will have to keep in mind the "average consumer who is reasonably well informed and reasonably observant and circumspect".
A number of elements are remarkable or interesting in this case: first, the demanding interpretation of article 8(2), excluding that the context of the transaction would be enough to expect the consumer to understand a certain click as entailing an obligation to pay; second, the fact that booking.com likely uses very similar language across its language versions, but will now probably have to initiate an investigation into the overall implications of all those versions (or change the button to add a reminder that confirming means entering an obligation to pay, which would probably - without really changing the legal reality in most Member States, scare off a certain quota of consumers); third, it reminds us of the importance of different implementation techniques, as it was Germany's specific choice to connect the contract's conclusion to the compliance with information obligations in cases like this one; finally, and perhaps most startingly, the case reminds us of the platform paradox. While booking.com had been the one setting up the context of the transaction as well as the concrete looks and language of the confirm button, the company stays entirely out of the underlying litigation: if their button, in other words, would be found ambiguous, other service providers (ie the hotels) would possibly be in trouble. Neither does it seem to me - but it may be due to my poor reading - that article 4 in the modernisation directive, amending the CRD to add specific information obligations on the side of platforms, would change this conclusion. LMK via available channels if you have any thoughts on this!
