Bestelk(n)opzorgen: De sanctie op een onduidelijke bestelknop en de balans tussen herstel en afschrikking

In this article, following Dutch Supreme Court rulings, we consider what constitutes a directive-compliant interpretation of the penalty in Art. 8(2) Consumer Rights Directive. The sanction transposed in Art. 6:230v (3) BW is intended to promote the internal market through a high level of consumer protection. To this end, this sanction, like other sanctions in consumer directives, has a dual function: legal redress for consumers and deterrence of traders. The principle of proportionality determines the right balance between the two functions. It follows from the case law of the CJEU that although both functions must be fulfilled, the fulfillment of the restoration function limits the deterrence function. Moreover, it is up to the consumer to determine whether he wants legal redress: a civil penalty therefore does not have to be applied at any cost. This autonomy principle sheds a different light on the partial annulment of contracts in default cases where there is a violation of the order button provision. The effective fulfillment of the recovery function requires that the consumer be informed that he is not bound by the contract. A glance at the French and German literature and practice suggests Dutch courts should consider the interests and conduct of both parties when applying the sanction: such circumstances affect the scope of the restitution obligations and may even indicate that the consumer has confirmed the contract.