THE BOTTOM LINE
- Zero Payment Risk: A non-compliant online order button could mean consumers are not legally required to pay for goods or services, potentially rendering the entire sale void from the consumer’s perspective.
- Major Legal Uncertainty: A Dutch court is challenging a recent ruling from its own Supreme Court, creating significant legal uncertainty for online businesses. It has escalated the issue to the Court of Justice of the European Union (CJEU) for a final say.
- Immediate Action Required: Businesses operating online in the EU must urgently review their checkout process. The text on the final order button must unambiguously state that clicking it creates a payment obligation, or they risk unenforceable contracts.
THE DETAILS
The dispute began simply enough: an education company sued a consumer in the Netherlands for failing to pay for an online course. When examining the case, the Amsterdam District Court looked at the company’s online checkout process. It found that the final button to complete the purchase was labelled “Versturen” (“Send”). Under the EU’s Consumer Rights Directive, this is not sufficient. The law explicitly requires that the button—or a similar function—uses a clear and unambiguous phrase like “order with payment obligation” to ensure consumers understand they are entering into a binding financial commitment.
This finding created a direct conflict with a recent decision by the Dutch Supreme Court. Faced with a wave of similar cases, the Supreme Court had ruled that while a non-compliant button is a breach of law, the sanction should be proportional. It suggested that courts could partially void the contract, for example, by reducing the price the consumer has to pay (e.g., by one-third) rather than invalidating the entire payment obligation. This was seen as a pragmatic approach to balance consumer protection with fairness to the business, which had often already delivered the goods or service.
The Amsterdam District Court, however, believes this national interpretation may not align with the strict requirements of EU law. The Consumer Rights Directive states that if the order button rule is violated, “the consumer shall not be bound by the contract or the order.” The court interprets this as an absolute sanction: the consumer owes nothing. Forcing a consumer to pay even a reduced price would mean they are still “bound” to the contract, which directly contradicts the Directive. To resolve this critical uncertainty, the court has referred a series of questions to the CJEU, asking for a definitive ruling on the consequences of a faulty order button. The key questions are whether a consumer can be forced to pay anything at all, and if they are required to return the product or pay for services already used.
SOURCE
Source: Rechtbank Amsterdam
