The notion of “establishment” does not refer to presence and use of technical means (software, hardware, either directly or through agents) merely for the purpose of technically enabling the provision of the service. As a rule, in this case, there exists no establishment, for e-commerce regulation purposes. Nonetheless, it is understood that in case that the commercial activity (the service for sale) is the technical service itself, then the above exemption from the notion of “establishment” is not applied.
Is a particular license required for e-commerce business start-up in Greece?
There exists no particular license for starting up e-commerce business transactions in Greece, as far as EU-registered enterprises are concerned, except for the field of rendering investment-, financial- and life insurance-market services. Non-EU enterprises have got to get prior license to initiate business transactions in Greece.
Specific procedures have to be followed, with regard to EU and non-EU enterprises, for fiscal and customs’ registration of cross-border transport of goods.
In addition, all enterprises, before initiation of e-commerce in Greece, have to get registered in the Greek Business Registry (‘GEMI’) which is supervised by the Ministry of Finance, by providing full identity details of both the enterprise and its legal representatives. GEMI
identity has to be displayed on the enterprise’s website.
Basic rules of conclusion of e-commerce agreement
Under the Greek Civil Code, the official site of an enterprise, which displays and/or exhibits and/or describes, in a clear manner the products / services for sale, includes an adequate invitation to the customer, namely the other contracting party, for the submission of the offer for conclusion of an e-commerce agreement (order of the customer). The submission of the order of the customer takes effect, under the Greek legal system, at the time that the message of the customer, whatever medium used in order that the message is sent, reaches the ‘mailbox’ or the terminal (access point) of the supplier. The critical point is, therefore, the point at which it is normally expected that the enterprise – supplier may take receipt of the content of the message. Compliance of the customer with the certain method and/or email address for posting of the order, which may be specifically mentioned on the supplier’s official site, is adequate evidence that the order takes effect at the time that the customer has sent his/her message by using this method/e-mail address.
Wrongful submission of the order, if by accident and/or misunderstanding on behalf of the customer and not as a result of deceit, results to the obligation of the customer to compensate the supplier for any damage as a result of this order. Nevertheless, it is mandatory for the supplier under Greek law, in case of a consumer e-contract, to provide to the consumer the right to recall and/or amend his/her order within a short time period.
In case the wrongful submission of the order comes as a result of deceit, the customer is entitled to cancel the order and claim compensation for any damages as a result of the deceitful act.
The aforementioned general rule is without prejudice to the obligation of the enterprise to state clearly, on its website, to customers, as part of mandatory information available prior to placing the order, the time and circumstances under which the conclusion of the contract is effected.
Minimum age for conclusion of an e-commerce transaction
As a general rule, customers under the age of eighteen (18) years may not validly conclude any agreement under which they undertake the responsibility to pay any amount. Exceptions to this rule require the fulfillment of conditions that are, under normal circumstances, unknown to the supplier. The supplier may only claim the refund of anything that the supplier missed, if the thing, at the time of the claim, is still to be found in the hands or estate of the customer.
Mandatory information to be made available to customers
The enterprise – supplier is obligated to provide clear information that have to be available and easily accessible to the customer before the customer places an order in relation to
- the enterprise’s identity and seat, its contact details, VAT reference number, if applicable,
- price of the product – service, any stamp and taxes payable, cost of postage, as well as clear notice if other costs are to be applied
- any need for exceptionally frequent or exceptionally cost-demanding maintenance of the goods/services
- any limitations to warranty, exclusions of seller’s – provider’s liability (to the extent permitted by applicable law and Greek law
- the association and/or supervisory authority in accordance with which the enterprise acts, if applicable, and any reference and contact details for any code of conduct with which the enterprise is obliged to comply,
- summary characteristics of the product / services and seller’s / providers’ liability with regard to any defects and fitness for purpose
- general terms of agreement, as well as any specific terms applicable
- stages to be followed for the conclusion and receipt of goods/services,
- option to alternative dispute resolution for consumer transactions and competent bodies/organizations
- permission to register and keep personal data and keep files of the transaction for future use,
- notice for filing the customer’s on-site visit and preferences, including permission to install on customer’s software ‘cookies’ .
Moreover, in case of a consumer-oriented transaction, the following information have to be made available, at the time prior to the time that the consumer places its order, mainly: (a) basic description of goods/services, (b) contact telephone number, (c) time within the enterprise undertakes to deliver the goods/services, (d) policy of the enterprise for submission of possible complaint of the customer, procedure and resolution regime (e) notice as to the supplier’s liability for defective delivery, after-sales services, terms of warranty if applicable, including clear notice of the applicable Greek legislation relating to the seller’s liability in case of defective product or product not fit for intended purpose, i.e. the Greek Civil Code and Law 2251/1994 as in force and effect, (f ) terms and conditions applicable on termination of the agreement, (g) notice for the consumer’s right to cancel (withdraw from) the agreement, terms and conditions, time limit available to the consumer, any consequences and related obligation on the consumer, including costs, (h) available methods of payment, description on the way the payment shall be effected, liability of seller – service provider for the proper completion of payment.
Above information, in consumer-oriented transactions, have to be stipulated in the Greek language.
The seller’s – provider’s omission to provide to the consumer the aforementioned information, in a clear way, leads to the invalidity of the e-commerce agreement in favor of the consumer. This means that the consumer is the only contracting party that may validly claim, at his/her discretion, the total refund of any payment and/or compensation.
Furthermore, the omission to provide full information, as above described, on the consumer’s right to cancel (withdraw from) the agreement, leads to the extension of time limit to another twelve (12) months. The minimum time limit stipulated in law is fourteen (14) days.
General terms of agreement in consumer transactions – Liability exclusion clauses
Although it is necessary for an enterprise to have in place a ‘general terms agreement’ for reference by any potential customer, mandatory consumer protection legislation regulates, to a large extent, the seller’s – provider’s obligations for performance of the agreement and for compensation / damages, if the product / service is classified either as non-compliant to the representations, description, warranties or as objectively defective.
In consumer agreements the supplier may not exclude or restrict above liability. As a result, negligence or willful misconduct in non-performance and/or improper performance of the obligations of the seller, supplier, contractor and/or service provider may not be excluded in a consumer agreement. Moreover, the seller, supplier, contractor and/or service provider carries full liability for any act or omission of all its delegates, sub-contractors, assignees for any part of the performance of its obligations under the agreement with the consumer.
Furthermore, regarding payment terms, the right of set-off may not be excluded and the supplier may not demand full payment of the price before the goods are delivered or even dispatched to the consumer, save in cases that the goods have been customized according to the customer’s special request.
Nonetheless, since applicable consumer protection legislation imposes on the supplier the obligation to provide a clear description of the use, any expiry date of the goods/services, analytical description of the goods, services, potential restrictions of use may serve as a security mechanism for the supplier – which also benefits the consumer – in order to minimize, to the extent possible, the liability risk. All such terms should be brought to the consumer’s attention at the time of conclusion of the agreement.
Additionally, any differentiated contract terms, as a result of negotiation with the customer, prevail over the standard – general terms of agreement.
On the other hand, mere hosting and/or storing of content (‘intermediaries’) may not validly cause to the enterprise operating the hosting and/or storing services / facility any liability issues regarding such content and/or the sale activity and/or the promoting activity. In this regard, liability exclusion clauses may be safely triggered, provided that (a) the content is not used or transmitted on the service provider’s initiative, (b) the party receiving the content has not been chosen by the hosting/storing service provider and (c) the content is not classified and/or amended on the service provider’s initiative.
It should be noted that the above cases of ‘intermediaries’ aim to the exclusion of liability of enterprises rendering technical facilities’ services. These cases have to be distinguished to any enterprises acting as agents or promoters of other enterprises, since the afore described exclusion of liability does not apply.
As a result, and given that above rules on governing law are generally found in most states / jurisdictions, an enterprise investing in e-commerce should take into account the extent of commercial and contractual freedom that is open, and have valid, lawful exemptions and restrictions listed in order to ensure profitable and risk-safe transactions.
Consumer’s right of cancellation / withdrawal in e-commerce transactions.
Any general terms agreement should take into account that one of the basic terms in ecommerce consumer-oriented legislation is the right of the consumer to cancel, without any justification (‘withdraw from’), the agreement. Such right may be exercised within fourteen (14) calendar days, starting from the delivery of the products or from the conclusion of the services agreement, if any other alternative, longer time limit has not been set by the supplier/service provider. Nonetheless, the contracting parties may perform their obligations under the agreement, namely delivery of goods/services and payment, within the aforementioned period. In case the right for cancellation is exercised, the price, if paid, has to be refunded to the consumer within thirty (30) calendar days. Any costs incurred on the part of the supplier (such as postage or lawful commission to third parties) may be deducted from the price to be refunded, to the extent of already supplied information communicated to the consumer before the time of his/her order.
