Ex Officio Assessment By Dutch Courts Of Information Obligations

• Law Firm: Hoogenraad & Haak advocaten
• Subject Matter: Corporate/Commercial Law, International Law, Litigation, Mediation & Arbitration, Compliance, Export Controls & Trade & Investment Sanctions
• Author: Mr Daniel Haije and Lisa Peek
• Published date: 28 March 2023

Before a consumer purchases something online, the seller must provide certain information to that consumer. As a webshop, it is wise to 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 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 "essential" 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...