Swiss and European e-commerce laws
Electronic commerce (e-commerce) is governed, in Switzerland, essentially by the federal law against unfair competition (LCD; RS 241 ) and the price indication ordinance (OIP; RS 942.211 ) and, in the European Union, through the Consumer Rights Directive (Directive 2011/83 / EU) and the Electronic Commerce Directive (Directive 2000/31 / EC).
In addition, the provisions of the Swiss Code of Obligations (CO; RS 220 ), also valid for traditional sales contracts, apply.
According to art. 184 ff. CO, a sales contract can be concluded electronically with a single click. The customer of a Swiss online store can conclude a sales contract with a click on the "Buy" button. Prerequisite: the two parties must agree on the essential points, namely in particular the object of the sale, the purchase price and the conclusion of the sale contract.
The non-binding provisions relating to the sales contract can, moreover, be adapted individually within the limits of the law. These changes may be stated by the seller in the form of general conditions of sale (CG). The GTC are an integral part of the contract once the buyer has been made aware of the GTC before the conclusion of the contract and has had the opportunity to read and approve them.
With regard to the provisions of the Code of Obligations, the following points should be emphasized:
- Right of revocation. Swiss law does not provide, for electronic commerce, any withdrawal period or other right of return once the order has been placed. The seller may provide for such a clause, but has no obligation to do so. The code of ethics of the Swiss Distance Selling Association, however, provides for a right of return of ten days which is binding only on the members of the Swiss Distance Selling Association .
- Delivery time. Swiss law does not provide for a maximum delivery time. To reassure customers, the seller can include one in the contract. However, it would be unfair - and this would constitute an infringement of the LCD - to indicate delivery times that are too short and impossible to keep for the sole purpose of attracting customers.
- Clear information. The operators of online shops are required to indicate on their website all the information within the meaning of art. 3, al. 1, let. s, LCD (see next paragraph).
- Guarantee . If a product has a defect or does not offer the promised characteristics, the buyer has two years to bring a warranty claim. The law provides for the termination of the contract (art. 208 CO) or the reimbursement of the capital loss of the thing sold (art. 205 CO). A warranty claim (repair) may be contractually agreed in addition to or in lieu.
Art. 3, al. 1, let. s, LCD defines the information that must be provided by an online store:
"Acts unfairly who, in particular, offers goods, works or services by means of electronic commerce without fulfilling the following conditions:
- clearly and completely indicate their identity and contact address, including for email,
- indicate the different technical stages leading to the conclusion of a contract,
- provide the appropriate technical tools to detect and correct input errors before sending an order,
- promptly confirm the customer's order by email. "
(1) The operator of an online store must indicate in the bear ( imprint ) the name of his company registered in the commercial register, his postal address and his email address. It is recommended to provide a phone number. A simple contact form is not enough.
(2) The customer must be able to clearly determine, during the entire order process, at what stage of the order he is. He must know when he concludes the contract definitively. It is recommended, for the conclusion of the contract, to use a button bearing a clear formulation, such as "Buy", "Order with payment obligation". On the other hand, formulations of the type "Order", "continue", "complete", "Next", "Subscribe" are not suitable .
(3) The details of the contract must be able to be checked and if necessary, corrected by the customer before the conclusion of the contract. The customer must be able to view the contract he concludes, in particular the quantity and type of product, the total price of the order and his billing / delivery details.
(4) The conclusion and the main elements of the contract must be confirmed to the customer electronically.
Art. 8 LCD prohibits the use of unfair commercial terms:
"Anyone who, in particular, uses general conditions which, in contradiction to the rules of good faith, provide, to the detriment of the consumer, a notable and unjustified disproportion between the rights and obligations arising from the contract."
The seller must not design its CG so as to serve only its sole interests and expose the consumer to a situation of significant and unjustified disproportion.
The Price Indication Ordinance (OIP) applies to offers to purchase and offers similar to a purchase made to consumers, and not to business-to-business (B to B) offers. It regulates the form in which prices must be indicated and everything that a price must include. We will only discuss certain points specific to electronic commerce below. For further information, please refer to the brochure " 2012 Practical Guide ". Of information booklets specific to certain branches are also available.
For goods, it is necessary to indicate the price actually to be paid in Swiss francs, including non-optional supplements of all kinds (art. 3 and 4 OIP). The price and all the relevant information concerning it must be clearly visible and easily legible near the goods illustrated / described (art. 7 and 8 OIP). The price must appear in an easily readable and clearly visible font size near the product. It should not appear only after scrolling through the web page or clicking on a link.
Non-optional supplements must be included in the price, as they are imperatively associated with the purchase of the goods and cannot be omitted. These include, for example, VAT, copyright fees, recycling taxes for household appliances, etc.
It is allowed to indicate the shipping costs separately, as these may vary depending on the volume of the order. However, they too must be clearly visible and easily legible. How to proceed? For example, by a link at the price level which links to the information page on shipping costs (e.g. shipping costs extra).
Optional price supplements must be indicated in a clear and transparent manner. If they must form an integral part of the contract, the customer must give his express agreement in the matter.
Supplements for payment by credit card are optional price supplements only if another free and commonly used payment method in Switzerland is available. Otherwise, these costs must also be included in the price.
The OIP applies to the services listed in art. 10, al. 1, OIP . For these services, it is necessary to indicate the price actually to be paid in Swiss francs , including non-optional supplements of all kinds (art. 10, paragraphs 1 and 2, OIP). Tourist taxes can be indicated separately. The prices must be easy to consult and easily legible (art. 11 OIP). The type (description) and the unit of services provided (number of people, hours, km, items, etc.) or prices should be clearly indicated. (hourly rate, kilometer rate, percentage, etc.) to which the prices relate.
Special provisions are also provided for in arts. 11 a to 12, OIP for a certain number of services. In this regard, please refer to the information brochures specific to certain branches .
When, in advertising, prices are mentioned or price ranges or price limits are given in figures, the prices to be paid actually, including for all goods and services all non-optional supplements.
The advertising offer must be specified. Concretely, it must be clearly indicated what the price refers to (number, weight, hourly rate, kilometer rate, etc.). Goods and services must be designated according to their essential criteria (brand, type, type, etc.). Therefore, the price must correspond to the product photographed or described. For advertising disseminated in electronic form (e.g. on home pages or banners on the Internet, in emails or on smartphones), it is possible to refer to a website in order to specify the offer , provided that it is accessible with a single click.
Comparative prices and price reductions are only allowed under certain conditions and for a certain time only. In this regard, please refer to the 2012 Practical Guide .
From the moment sensitive data is collected from customers, an e-commerce site is subject to federal data protection law:
In the event of a dispute arising from a consumer contract, the consumer can bring legal action either at his place of domicile or that of the seller. The consumer cannot waive this right in advance.
EU legislation is more stringent in some areas than Swiss technical requirements. If the online store is also intended for consumers from European Union countries, the following elements must be taken into account in addition to the prescriptions already mentioned:
- Right of revocation. In principle, a customer can return a product within 14 days of receipt.
- Payment, delivery and service conditions, and delivery time. Possible duration of the contract and terms of termination. The corresponding information must be indicated. Unless otherwise agreed, the delivery period is a maximum of 30 days.
- Clear information. In addition to the seller's contact details, the main characteristics of the product or service should be indicated. The total price must also be mentioned, all taxes and fees included. It is advisable to indicate the costs which cannot be calculated in advance and to specify the method of calculation of the prices.
- Guarantee . The legal guarantee is at least two years. During this period, the consumer can request repair or replacement of the defective product. If he does not obtain the expected result, the termination of the contract or the reimbursement of the capital loss is in principle possible.
- CG. The consumer must have the possibility of consulting and recording the CG when concluding the contract.
Control button. The button used to place an order must include the expression "order with payment obligation" or another explicit name.