Swiss and European e-commerce laws

In Switzerland, electronic commerce (e-commerce) is mainly governed by the Federal Law Against Unfair Competition (LCD; RS 241) and the Order on the Indication of Prices (OIP; RS 942.211), and in the European Union by the Directive on Consumer Rights (Directive 2011/83/EU) and the Directive on Electronic Commerce (Directive 2000/31/EU).

The provisions of the Swiss Code of Obligations (CO; RS 220) applicable to traditional sales contracts also apply.

It takes just one click to enter into a sales contract

Under Articles 184 et seq. CO, a sales contract can be entered into electronically with just one click. The customer of a Swiss online store can enter into a sales contract just by clicking on “Buy”. Both parties must first agree on the essential points, i.e. the purpose of the sale, the purchase price and the making of the sales contract.

The non-binding provisions relating to the sales contract may be adapted individually, within the limits of the law. These changes can be set out by the seller in the form of general terms and conditions of sale (T&Cs). The T&Cs form an integral part of the contract once the buyer has been made aware of the T&Cs before the contract is made and the buyer has had the opportunity to read and approve them.

Regarding the provisions of the Code of Obligations, the following points should be emphasized.

  • Right of cancellation In e-commerce, Swiss law does not provide for any withdrawal period or other right of return once the order has been placed. The seller can provide for such a clause, but has no obligation to do so. The Code of Ethics of the Swiss Association of Distance Selling, however, provides for a 10-day right of return, which only commits members of the Verband Schweizerischer Versandhandel VSV.
  • Delivery times. Swiss law does not provide for any maximum delivery time. To reassure customers, the seller may stipulate such times in the contract. Nonetheless, it would be unfair – and would constitute an infringement of the LCD – to indicate delivery times which are too short and impossible to meet solely in order to attract customers.
  • Clear information. Online site operators are required to indicate on their website all the information stipulated in Art. 3 (1)(s) LCD (see next paragraph).
  • Warranty. If a product presents a defect or does not offer the promised characteristics, the buyer has two years in which to file a warranty action. The law provides for termination of the contract (Art. 208 CO) or refund of the decrease in value of the item sold (Art. 205 CO). A right to warranty (compensation) may be agreed contractually in addition to or instead of this.

The Federal Law Against Unfair Competition (LCD)

Art. 3 (1)(S) LCD defines the information which must be provided by an online store.

“Anyone offering goods, work or services using electronic commerce without meeting the following conditions, is acting unfairly:

  1. indicate clearly and in full its identity and contact address, including e-mail,
  2. indicate the various technical steps resulting in the making of a contract,
  3. provide the appropriate technical tools making it possible to detect and correct entry errors before sending an order,
  4. immediately confirm the customer’s order by e-mail.”

(1)  The online store site operator must state their company name, as listed in the trade register, their postal address and their e-mail address on the contacts page. Providing a telephone number is recommended. A simple contact form is not enough.

(2)  The customer must be able to clearly determine, throughout the order process, which stage of the order they have reached. They must know when they have finally entered into the contract. To enter into the contract, using a button with clear wording is recommended, such as “Buy”, or “Order with payment obligation”. Conversely, wording of the type “Order”, “Continue”, “Complete”, “Next” or “Sign up” are not appropriate.

(3)  It must be possible for contract details to be checked and, if necessary, corrected by the customer before entering into the contract. The customer must be able to view the contract they are entering into, particularly the quantity and type of product, the total order price and their billing/delivery details.

(4)  The making and main elements of the contract must be confirmed to the customer electronically.

Art. 8 LCD forbids the use of improper commercial conditions:

“Anyone using general terms and conditions which, in contradiction of the rules of good faith, provide, to the detriment of the consumer, for a marked and unjustified disproportion between the rights and obligations arising from the contract, is acting unfairly.”

The seller must not draw up its T&Cs so that they serve only its own interests and expose the consumer to a situation of marked and unjustified disproportion.

Order on the Indication of Prices (OIP)

The Order on the Indication of Prices (OIP) applies to purchasing offers and offers comparable to a purchase which are made to consumers, and not business to business offers (B to B). It regulates the way in which prices must be indicated and everything which must be included in the price. Below we shall examine some points specific to e-commerce. For more detailed information, please refer to the brochure “2012 Practical Guide”. Information brochures specific to certain sectors are also available.

GOODS

For goods, it is necessary to indicate the actual price to be paid in Swiss francs, including non-optional supplements of any kind (Art. 3 and 4 OIP). The price and all relevant information about the price must be clearly visible and easily legible alongside the illustrated/described goods (Art. 7 and 8 OIP). The price must appear in a font which is easily legible and clearly visible, in proximity to the product. It must not appear only after scrolling down the page or clicking on the link.

Non-optional supplements must be included in the price, as these are imperatively associated with the purchase of the goods and cannot be omitted. These include, for example, VAT, copyright loyalties, recycling duties for household appliances, etc.

Websites can indicate shipping costs separately, as these may vary depending on the size of the order, but they must also be clearly visible and easily legible. Websites may go about this, for example, by using a link located near the price, directing the browser to the page providing information about shipping charges (e.g. additional shipping charges).

Optional price supplements must be indicated clearly and transparently. If they form an integral part of the contract, the customer must give their express consent to this.

Supplements for payment by credit card are optional price supplements only if another method of payment which is free and commonly used in Switzerland is available. Failing this, these costs must also be included in the price.

SERVICES

The OIP applies to the services listed in Art. 10(1) OIP. For these services, this means indicating the actual price to be paid in Swiss francs, including non-optional supplements of any kind (Art. 10 (1) and (2) OIP). Tourist taxes may be indicated separately. Prices must be easy to find and easily legible (Art. 11 OIP). The website should clearly indicate the type (description) and unit of the services (number of people, hours, km, items, etc.) or the rates (hourly rate, rate per kilometer, percentage, etc.) to which the prices refer.

Special provisions are also set out in Art. 11a to 12 OIP for a certain number of services. Please refer to the information brochures specific to certain sectors.

ADVERTISING

When, in advertising, prices are mentioned or price ranges or price limits are given in figures, for all goods and all services, the actual prices to be paid including all non-optional supplements must be shown.

The advertising offer must be specified. In concrete terms, what the price relates to must be clearly indicated (number, weight, hourly rate, rate per kilometer, etc.). The goods and services must be described using their essential criteria (brand, type, sort, etc.). The price should therefore correspond to the product photograph or description. For advertising distributed electronically (e.g. on website home pages and banners, in e-mails or on smartphones), it is possible to link to a website to provide details of the offer, on the condition that the website is accessible with just one click.

PRICE COMPARISONS

Comparative prices and price reductions are authorized only under certain conditions and for a certain period of time. In this respect, please refer to the 2012 Practical Guide.

Data Protection Law

An e-commerce website is subject to the Federal Data Protection Law if sensitive data are collected about customers:

Jurisdiction

In the event of any dispute arising from a consumer contract, the consumer may bring legal proceedings either at the location of their address or at the location of the seller. The consumer cannot waive this right in advance.

Electronic commerce in the EU

EU legislation is stricter on some points than Swiss technical rules. If the online store is also aimed at consumers in EU countries, the following elements must be taken into consideration, in addition to the rules already cited:

  • Right of cancellation. In principle, a customer can return a product within 14 days of its receipt.
  • Terms of payment, delivery and service and delivery times. Potential term of contract and cancellation procedures. The corresponding information must be indicated. Unless agreed otherwise, the delivery time is a maximum of 30 days.
  • Clear information. Apart from the seller’s contact details, the main characteristics of the product or service must also be indicated. The total price, inclusive of tax and fees, must also be mentioned. Costs which cannot be calculated in advance must be indicated and the method of calculating prices must be specified.
  • Warranty. The legal warranty is a minimum of two years. During this period, the consumer may request repair or replacement of the faulty product. If customers do not obtain the expected result, cancellation of the contract or refund of the decrease in value is possible in principle. 
  • T&Cs. The consumer must have the option of viewing and saving the T&Cs when entering into the contract.
  • Order button. The button used to place an order must feature the words “order with obligation to pay” or similar explicit wording. 

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Last modification 28.08.2018

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