Landmark Ruling: Basic Price Information in Online Sales
The Schleswig Higher Regional Court recently issued a landmark ruling on basic price information in online sales (Case No. 6 U 36/22). This decision highlights critical aspects online retailers must consider regarding basic price indications to avoid legal warnings. This article summarizes the ruling and outlines key principles on the subject of basic price information.
Summary of the OLG Schleswig Judgment
In the case at hand, an online retailer offered a set of four scented candles for a total price of €19.99. The item description included a weight of 1.6 kg. However, the retailer failed to provide a basic price, leading a consumer association to issue a warning, citing the German Price Indication Ordinance (PAngV).
The retailer subsequently issued a cease-and-desist declaration, agreeing to indicate the basic price for items sold by weight in the future. Nevertheless, a few weeks later, the candle set was again offered without a basic price. This prompted the association to demand a contractual penalty of €3,000 for breaching the declaration.
Initially, the regional court ordered the retailer to pay the contractual penalty. However, the Schleswig Higher Regional Court overturned this decision on the retailer's appeal. It ruled that no contractual penalty was due because there was no breach of the cease-and-desist declaration. The court reasoned that the candle set was sold by number of pieces, not by weight, with the weight specification serving merely as a description. For sets, a basic price indication is only required if they are explicitly sold by weight, which was not the case here.
When is Basic Price Information Required?
According to Section 2 of the Price Indication Ordinance (PAngV), the basic price must be indicated if goods are offered by weight, volume, length, or area. This also applies when a legal weight specification is mandatory, such as for foodstuffs. In contrast, for packages, sets, or multipacks, a basic price indication is only necessary if they are sold by weight, volume, or similar units.
A weight indication alone does not trigger a basic price obligation if the goods are primarily offered based on other units, such as the number of pieces. Traders must therefore carefully assess whether their offers comply with Section 2 PAngV. This can be particularly complex for sets and packaging, where the crucial factor is whether these items are typically sold by weight.
For example, a 6-pack of yogurt cups does not require a basic price as it is not usually sold by weight. However, products like coffee, where consumers expect a price comparison, often necessitate a basic price even when packaged. Understanding these nuances is crucial for e-commerce start-ups.
Key Rulings on Basic Price Information
Case law in recent years has established several guidelines for retailers concerning basic price information.
No Immediate Proximity Required
Previously, the Price Indication Ordinance mandated that the basic price be in immediate proximity to the total price. However, the German Federal Court of Justice (BGH) clarified in a 2022 ruling (BGH, judgment of May 19, 2022, Case No. I ZR 69/21) that this is not strictly necessary. It is sufficient if the basic price is clearly and easily recognizable. This ruling provides greater flexibility for online merchants, as the basic price does not have to be directly adjacent to the total price but can be displayed somewhat further away.
False Statements are Anti-Competitive
The Regional Court of Bochum has ruled that a false indication of the basic price constitutes a violation of competition law (judgment of January 10, 2019, Case No. I-2 O 200/18). Therefore, retailers must meticulously verify the accuracy of basic prices and cannot solely rely on information provided by suppliers. Providing false information can lead to legal warnings and other consequences, forming part of the broader considerations in competition law in digital marketing.
Basic Price for Packaged Goods
In some cases, basic prices must also be indicated for packaged goods. For instance, the OLG Hamburg ruled in 2018 (ruling of March 22, 2018, Case No. 5 U 87/17) that a basic price is required for coffee capsules despite their packaging. This implies a disclosure requirement for products where consumers typically expect a price comparison. This falls under the general need for transparency to avoid a warning trap.
No Obligation for Piece-Count Sets
The Schleswig Higher Regional Court (OLG Schleswig) clarified in 2021 (ruling of 09.08.2021, ref. 6 U 10/21) that no basic price information is required for sets sold by number of pieces. The mere addition of a weight specification does not alter this requirement. This ruling is particularly relevant for items like furniture, textiles, or cosmetic sets, which are often described by weight but sold individually or as a set of distinct pieces.
Conclusion for Online Retailers
For online retailers, these rulings provide clear recommendations for action to ensure compliance and avoid legal pitfalls:
- Assess whether a basic price obligation applies to your products.
- Ensure that all basic price information is accurate and correct.
- Carefully check disclosure requirements for packaged goods.
- Only specify a basic price for sets and multipacks if they are sold by weight or similar units.
- Remember that the basic price does not necessarily have to be placed directly next to the total price, as long as it's easily recognizable.
Regular checks of product listings and adherence to legal requirements are highly advisable, as legal provisions and product ranges can change. By staying vigilant, retailers can avoid costly warnings. Case law offers valuable guidance on areas of flexibility and caution. When in doubt, seeking legal advice is always recommended.