Where buyers gather online
Online orders from providers outside Europe involve legal risks
When looking for offers for almost all kinds of goods, price-conscious online buyers quickly end up with senders from Shenzhen, Shanghai, Guangdong or Hong Kong. Even those who try to avoid foreign suppliers while cursing German-speaking sales platforms cannot always be sure that the goods apparently ordered in Germany will not come to them from China.
An example from practice: some home office video conferencers have searched online for the rare commodity webcam in the last few weeks and got stuck with one of countless almost identical offers on the Amazon marketplace. For example, someone offered a USB webcam from “Licyly” in unsuspicious German for just under 43 euros. Under the “Buy now” button there was a note that sales and shipping were carried out by “boom-boom”. Those who looked more closely learned the following under "Imprint & Info about the seller" in addition to the estimated shipping time of up to eight weeks:
By the way, some eBay bargain hunters have already been fooled by the "item location" filter on the search results page of the online sales platform. The default setting “eBay Germany” does not mean that only German senders are displayed.
Buying from suppliers in China or elsewhere outside the European Union can be quite problem-free. Most of the time, shipping takes significantly longer than from German locations. And complaints can be stressful - language problems are then the more harmless annoyances. Otherwise, orders from overseas providers often go smoothly in practice.
However, it doesn't have to be that way. Depending on the value of the goods purchased, there may be additional costs that make some seemingly bargains much less attractive. Then, instead of receiving the package from overseas, the customer receives a letter from the customs office responsible for him, which has withheld the shipment, with the request to go to the post office of the authority.
First of all, some China offers seem so cheap because the price mentioned does not include German VAT, unlike the prices called up by German providers. In the case of a direct import from a non-EU country, however, import sales tax is charged if the total value of the shipment exceeds 22 euros. This tax must be paid by the recipient in Germany, unless the seller has expressly assumed this for him.
The amount of import sales tax is normally 19 percent of the value of the goods. For some products, only a reduced import sales tax of 7 percent is due. A list of products with reduced import sales tax can be found in Section 12 (2) UStG.
The amount of the fees depends on the goods
In addition, the buyer must pay a customs duty if the cost of the goods is over 150 euros. This follows from Article 23, Paragraph 2 of the Customs Exemption Ordinance. In addition to the price, the costs considered here also include the shipping costs to be paid by the buyer.
The amount of the customs fees depends on the value and the type of goods. The applicable tariff rates differ depending on the type of goods. The legal basis is the Customs Code of the European Union with the associated implementing regulations. In order to get an overview of the costs for customs and import sales tax for online orders, it is advisable to use the online customs calculator from Stiftung Warentest. For example, a DSLR interchangeable lens that was offered for 500 euros can add a total of around 135 euros; the pure tariff here is 6.7 percent. It also applies to customs duties that they are the responsibility of the recipient, unless the seller has expressly accepted them.
It is not for nothing that China is considered an Eldorado for product counterfeiters. Many branded items that are sometimes offered at ridiculous prices on platforms such as aliexpress or eBay are actually counterfeits. The spectrum ranges from watches and luxury electronics to bags and trendy clothing. The customs offices in Germany keep black lists of senders who have already been noticed by counterfeit products and collect parcels from these sources as a precaution in order to check their contents.
The German Trademark Protection Act (MarkenG) allows trademark owners to file applications for the confiscation of alleged counterfeits of their products. Art. 18 of the Product Piracy Ordinance (Piraterie-VO) also authorizes customs to investigate suspected counterfeiting ex officio.
If the buyer does not object to a seizure in due time, he must expect the officials to confiscate and destroy his purchased goods. The same applies if it is established that there has been a trademark infringement.
In addition, the owner of the trademark rights can also assert a claim for injunctive relief and compensation against the buyer. However, this normally presupposes that he has acted in business dealings (§ 14 MarkenG). A private person can also act in business dealings. An indication of this would be, for example, that the person repeatedly trades in goods of the same type - especially when it comes to new items. Even those who tend to resell purchased items in a timely manner usually act in business dealings.
In addition to the civil law claims of right holders, such a buyer of counterfeit trademarks is threatened with criminal consequences in the form of a prison sentence of up to three years or a fine. If he is also acting commercially, a court can even send him to prison for up to five years (§ 143 MarkenG). Commercial activity goes beyond mere business dealings: it arises from the intention to create a source of income that is not just temporary by repeatedly committing a criminal offense.
According to the eBay account information, the provider of the inexpensive new smartphone lens is based in Hamburg. However, the gibberish of his offer raises doubts about the specified shipping location.
Consumer rights with question marks
Quite apart from the trouble with customs, tax and trademark law: When buying from overseas, consumers can lose some of the usual legal convenience - for example when they want to return an item. The German Civil Code (BGB) provides for a 14-day right of withdrawal without giving reasons for distance sales transactions (Section 312g Paragraph 1 and Section 355 BGB), and there is also a commercial warranty claim against the seller in the event of material defects (Section 437 BGB).
If a seller is stubborn abroad and a legal dispute arises, the buyer does not need a Chinese law firm. He can take legal action at a German court that is competent for his place of residence. The question is, however, whether he can claim the purchase price back on the basis of German law. To do this, the seller must have focused his business activities on Germany. Whether this is the case always depends on the individual case. If the entrepreneur in Germany makes offers or places advertisements, also in electronic business transactions through websites or e-mail, this speaks for such an orientation. Another point of reference can be the use of top-level domains such as .de or .eu, but also neutral domains such as .com or .net. The language of a supply page and the currency mentioned there must also be taken into account.
It is doubtful, however, whether the consumer can enforce his claims against a trader from China that he has brought before a German court. There is no enforcement agreement between Germany and China.
Don't be dazzled
Especially with hectic product searches on online platforms that gather suppliers from all over the world, a low price provokes premature purchase clicks. However, it is advisable to check the seller's imprint and its terms and conditions. Such a look often provides clues that promise trouble: for example an incomplete imprint, implausible address data or a linguistic hustle and bustle. Overpriced offers can also be bait from fake shops. Among other things, the information page of the e-commerce liaison office has put together a list of how you can protect yourself against online fraud. (psz)
This article comes from c't 12/2020.
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