With the approaching effective date of the DSA, as the EU Regulation on Digital Services (Digital Services Act) is abbreviated, articles on this subject will become increasingly common in the media. For these reasons, we consider it useful to remind readers once again that the DSA Regulation enters into force on 17 February 2024 and that for those traders who engage only in the sale of goods on the internet, it should not bring any substantial regulatory burden. The impacts on traders will be more of an indirect nature, resulting from new obligations imposed on online platforms that facilitate internet sales. In this legal newsletter, we will address one of these obligations, namely enabling traders to fulfil their legal obligations by the operator of such a platform, which takes the form of an online marketplace.
Specifically, this obligation is enshrined in Article 31(1) of the DSA, which provides that “Providers of online platforms allowing consumers to conclude distance contracts with traders shall ensure that their online interface is designed and organised in a way that enables traders to comply with their obligations under applicable Union law relating to pre-contractual information and information on product compliance and product safety.” As is known, generally binding legal regulations currently require traders to fulfil a large number of pre-contractual information obligations towards consumers (most commonly traders fulfil these obligations through terms and conditions). The fact that a trader offers goods through an online marketplace (and not through its own website) does not change the existence of information obligations towards consumers.
The above-mentioned provision of the DSA thus establishes an obligation for marketplace operators to adopt such technical measures that enable traders to fulfil their legal obligations (to allow the insertion of terms and conditions or other texts by the trader and subsequently to display them to consumers). The other side of the coin is that if the platform operator enables the trader to fulfil these obligations (i.e. allows the trader to insert various information within their profile on the platform), the trader should logically do so. The trader’s responsibility for fulfilling information obligations when selling goods through a marketplace is the same as in the case of selling goods through their own website.
From the perspective of the platform operator, merely enabling traders to fulfil their legal information obligations will not be sufficient; rather, the platform operator should also monitor whether the trader actually fulfils these obligations. Specifically, this is stated in Article 31(3) of the DSA: “Providers of online platforms allowing consumers to conclude distance contracts with traders shall make their best efforts to assess whether those traders have provided the information … before allowing them to offer products or services on them.” This means that the platform operator should carry out prior monitoring of the trader’s fulfilment of information obligations before allowing the trader to offer and sell goods on the platform. We shall see how platform operators will approach these obligations in practice.
Josef Aujezdský
This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal newsletter No. 11/2023 intended for members of this association.
This text was translated from Czech to English using an AI translator.