Ex officio assessment by Dutch courts of information obligations

Before a consumer purchases something online, the seller must provide certain information to that consumer. Any webshop should carefully check whether it complies with these information obligations. In the Netherlands, judges have to assess this ex officio and impose a sanction for a violation, such as refund of the purchase price.

The mandatory information mainly refers to details a consumer needs to make an informed purchase decision. For example, information on the main characteristics and price of the product (article 6:230m and article 6:230v of the Dutch Civil Code). Since the Arvato judgment (in Dutch) of the Dutch Supreme Court (2021), Dutch judges have to assess ex officio - i.e. without a party invoking it - whether the seller has complied with these information obligations. Often, in the event of a violation, the court must impose a sanction: (i) in the case of information obligations for which Dutch law imposes a specific sanction, the court must impose that sanction and (ii) in the case of a ‘sufficiently serious breach’ of an ‘essentia’ information obligation, e.g. the obligation to provide information about the price, for which Dutch law does not impose a specific sanction, the court must dissolve (in Dutch: ontbinden) the purchase agreement in whole or in part.

A seemingly 'small' mistake can have far-reaching consequences: last year, the court in The Hague (in Dutch) dissolved a purchase agreement ex officio. The consumer was no longer required to pay the purchase price. The reason: the order button on the seller's website did not indicate clearly enough that placing an order implied a payment obligation, in violation of article 6:230v (3) of the Dutch Civil Code.

In addition, the Dutch courts have issued a sanction Guideline (in Dutch). For up to three sufficiently serious violations of essential information obligations (for which Dutch law does not impose a specific sanction), a 25% price reduction must be imposed and for more than three of such violations, a 50% price reduction.

This is certainly ample reason for online retailers to check carefully whether their webshop complies with the information obligations. Hoogenraad & Haak is happy to think along and even offers a fun and interesting seminar on this subject!

Daniël Haije and Lisa Peek