Not all provisions of the Swiss Code of Obligations are mandatory. The parties may deviate from non-mandatory provisions. Online retailers can do so in a general manner by using terms and conditions. Swiss sales law provides for a two-year warranty period for movable property if a product is defective or lacks the characteristics that were warranted. If the conditions for a warranty claim are met, the Swiss Code of Obligations (OR) provides for rescission of the contract (= withdrawal from the contract) or a reduction in the purchase price. However, this statutory provision is not mandatory and may be modified by contractual agreement. A warranty claim (right to rectification or repair) may also be agreed upon in addition to or in lieu of the statutory warranty.
Swiss law does not specify any maximum delivery times. However, a seller may set such time limits for its customers. It would be unfair, however, to specify delivery times that are too short and impossible to meet, solely for the purpose of attracting customers.
Swiss law does not provide for a right of withdrawal in online commerce. Therefore, online retailers are not required to accept returns unless they have granted their customers a contractual right of return. In such cases, the online retailer must include information in its Terms and Conditions regarding the existence of the right of withdrawal, the applicable withdrawal periods, and other terms and conditions governing the right of withdrawal. However, members of the HANDELSVERBAND.swiss are obligated under the Code of Ethics to provide a 14-day right of return, although exceptions are also provided for in this case.
Unlike Switzerland, the EU provides for a 14-day right of withdrawal from the delivery date without the need to provide a reason. Swiss online store operators who also market their products and services to consumers residing in the EU must adopt the EU’s right of withdrawal, as illustrated by a recent ruling from Germany in which a notice of withdrawal was omitted (Judgment VIII ZR 226/22 of the Federal Court of Justice [BGH] dated May 15, 2024). However, even the European right of withdrawal does not apply without restriction, and numerous exceptions must be taken into account. The online store operator must inform the consumer of the right of withdrawal (see, e.g., Judgment VIII ZR 226/22 of the Federal Court of Justice (BGH) dated May 15, 2024).
The UWG stipulates that online store operators are required to provide certain basic information on their websites.
Pursuant to Art. 3(s) of the Unfair Competition Act (UWG), it is considered unfair, in particular, for anyone offering goods, works, or services in electronic commerce to fail to:
Accordingly, the operator of an online store is required to include in the legal notice the company name as listed in the commercial register, the mailing address, and the email address. Providing a phone number is recommended. The customer must also be able to see at every stage of the ordering process which step of the order they are currently in. Before completing the order, the customer should also be given the opportunity to review their order at their leisure in a summary view. Finally, the customer must receive electronic confirmation of the conclusion of the contract and the most important contract details. Within the scope of EU legislation, it is also required that the button for placing the final order be labeled with the words “order with obligation to pay” or another unambiguous phrase. The EU’s obligations regarding information go beyond those of Swiss law. In addition to the seller’s contact information, the most important characteristics of the product or service must be specified.
The use of unfair terms and conditions also constitutes unfair conduct. Terms and conditions are considered unfair if they are used in a manner that violates the principle of good faith to the detriment of the consumer and establish a significant and unjustified imbalance between contractual rights and obligations. If the online store also targets consumers in EU countries, consumers must additionally be able to access and save the terms and conditions upon conclusion of the contract.
Art. 3 of the PBV requires that retailers of products state the actual retail price to be paid in Swiss francs, which must therefore include any surcharges and taxes. Only shipping costs may be listed separately. The price must also be clearly attributable to the goods offered, and it must be clear to the customer what price is being paid for what quantity of product. Art. 10 et seq. of the PBV govern the requirements for offering services. It must be clear to which type (description) and unit (number of people, hours, kilometers, items, etc.) of the service, or to which billing rates (hourly rate, per-kilometer rate, percentage, etc.), the stated price refers.
Particular care must be taken when structuring prices in connection with the granting of discounts . In addition to the actual price to be paid, a provider may, under certain conditions, disclose a comparative price, such as a price reduction. A self-comparison exists if the provider had, immediately prior to the offer, actually offered the goods or services at a higher price (Art. 16(1)(a) PBV: comparison of the provider’s own currently valid price with its own previously valid price). In the case of an introductory price, the situation is such that the provider initially offers the goods or services at a lower price and subsequently actually offers them at the higher comparative price (Art. 16(1)(b) PBV: comparison of the provider’s own currently valid price with its own price valid at a later date). A third option is the comparison with competitors, which is permissible if other providers in the relevant market area are actually offering the majority of identical goods at that price (Art. 16(1)(c) PBV: comparison of one’s own price with that of competitors).
The reference price under Art. 16(1)(a) and (b) may be advertised for half the period during which it was or will be in effect, but for no longer than two months (Art. 16(3) PBV). Discounted prices may therefore under no circumstances be offered for longer than two months.
Data protection regulations must also be taken into account in online commerce. Under Swiss law, the DSG must be observed. In addition, however, the GDPR must also be observed, for example, when goods or services are offered from Switzerland to the EU or when the behavior of individuals in the EU is monitored. In such cases, the GDPR has extraterritorial applicability. The two laws do not differ significantly. What both laws have in common is that they include provisions on “Privacy by Design ” and “Privacy by Default.” “Privacy by Design” stipulates that data protection technologies must be integrated into the core system architecture of the online store from the outset. The “Privacy by Default” approach requires that data protection settings be configured by default in such a way that adequate data protection is ensured without any action on the part of the consumer. These requirements must be taken into account when implementing an online store. It is also important that the privacy policy clearly informs users about the data processing that takes place, thereby ensuringthe principle of transparency. With regard to the principle of proportionality, the Federal Data Protection and Information Commissioner (FDPIC) determined in an investigation into a Swiss online retailer that requiring customers to create an account to place orders violated the principle of proportionality. According to the FDPIC, customers should be offered the option to make a guest purchase without registering. Such processing would interfere less significantly with customers’ informational self-determination.
Properly setting up an online store requires careful attention to the applicable legal provisions, which stem from various sources of law, some of which are international. It is therefore advisable to have your contracts and privacy policy reviewed by a professional—a service we at LezziLegal are able to provide.
Do you have any questions about this topic, or would you like a personal consultation? Write to us—we’re happy to help.
