The Schleswig Higher Regional Court recently issued a landmark ruling on basic price information in online sales (Case No. 6 U 36/22). The ruling shows what online retailers must pay attention to when stating basic prices in order to avoid warnings. The following summarizes the decision and presents the most important rulings on the subject of basic price indication.
Summary of the judgment of the OLG Schleswig
In the case decided, an online retailer had offered 4 scented candles in a set for a total price of €19.99. The item description stated the weight as 1.6 kg. The retailer did not name a base price. A consumer association then issued a warning about the indication of the basic price, citing the German Price Indication Ordinance (PAngV). The retailer issued a cease-and-desist declaration in which it undertook to indicate the basic price in future for items offered by weight. A few weeks later, the dealer offered the candle set again without basic price. The association then demanded a contractual penalty of €3,000 for breach of the cease-and-desist declaration.
The regional court ordered the dealer to pay the contractual penalty. However, the Higher Regional Court of Schleswig overturned the ruling on the dealer’s appeal. It ruled that no contractual penalty was payable because there was no breach of the cease-and-desist declaration. The candle set had not been offered by weight, but by number of pieces. The weight specification only serves the purpose of description. In the case of sets, a basic price indication is only required if they are also sold by weight. This was not the case here.
When must the base price be indicated?
According to § 2 of the Price Indication Ordinance, the basic price must be indicated if goods are offered by weight, volume, length or area. This also applies if a legal weight specification is required, e.g. for foodstuffs. In the case of packages, sets or multipacks, on the other hand, a basic price indication is only required if these are also sold by weight, volume, etc. A weight indication alone does not trigger a basic price obligation if the goods are offered according to other units such as number of pieces.
Traders must therefore check whether their offer meets the requirements of Section 2 PAngV. This can be difficult with sets and packaging. Here it depends on whether they are usually sold by weight. This is not the case with a 6-pack of yogurt cups, so no base price needs to be specified here. The situation is different with coffee, for example. Here, customers also expect a basic price for packaging.
Examples of rulings on basic price information
In recent years, case law has set up a number of guidelines as to what retailers must observe when stating basic prices:
Immediate proximity not required
For a long time, the Price Indication Ordinance (Preisangabenverordnung) required that the basic price be in close proximity to the total price. However, the BGH did not consider this to be necessary in a ruling in 2022. It is sufficient if the basic price is clearly and easily recognizable (BGH, judgment of May 19, 2022, Case No. I ZR 69/21). This case law is relevant for online merchants, as the base price does not have to be directly next to the total price, but can also be indicated somewhat further away.
False statement is anti-competitive
In the opinion of the Bochum Regional Court, 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). Retailers must therefore verify the accuracy of base prices and cannot rely on information provided by suppliers. If false information is provided, a warning may be issued.
Base price also for packaging
Base prices must sometimes also be indicated for packaged goods. For example, the OLG Hamburg ruled in 2018 that a basic price is required for coffee capsules despite the packaging (ruling of March 22, 2018, Case No. 5 U 87/17). Thus, for products where consumers expect a price comparison, there is a disclosure requirement.
No obligation for sets
In 2021, the Higher Regional Court of Schleswig (OLG Schleswig) clarified that no basic price information is required for sets that are sold by number of pieces (ruling of 09.08.2021, ref. 6 U 10/21). The additional weight specification does not change this. This is particularly relevant for furniture, textiles or cosmetic sets, which are often described by weight but sold by piece.
Conclusion for online retailers
For online retailers, this results in clear recommendations for action:
- Check whether a basic price obligation exists
- Do not provide false or incorrect information
- Check disclosure requirement for packaged goods as well
- For sets and multipacks only specify base price when sold by weight
- Do not necessarily place the base price directly with the total price
Regular checks are advisable, as legal requirements and product ranges can change. In this way, expensive warnings can be avoided. Case law provides guidance to merchants on where there is room to maneuver and where caution is advised. In cases of doubt, legal advice should be sought.