Conditions of price indications in the fine print prohibited

A car dealer may not advertise a car at a price that is dependent on the buyer paying for his old vehicle if this is not apparent to the consumer at first sight. This was decided by the 6th Civil Senate of the Higher Regional Court of Cologne by judgment of 05.04.2019 and, unlike the regional court, upheld the action brought by a competition centre against the car dealer.

The complained car dealer offered a car on an online platform as a “limousine, new vehicle” for the price of 12,490 euros. The advertising for the offered vehicle extended over several screens that can be accessed by scrolling down. Only under the item “Further” at the end of the advertisement was it stated that the price should only apply if the customer pays for an approved used vehicle. In addition, it noted that the price was subject to a daily admission in the following month.

The 6th Civil Senate has decided that the price indication is misleading and therefore inadmissible. The advert gives the impression that the vehicle can be bought by anyone for the price of 12,490 euros. In fact, however, the price applies only to buyers who could and wanted to pay for an approved vehicle. This constituted a so-called “brazen lie” that could not be corrected even by an explanatory addendum. Price indications should ensure clarity on prices and prevent consumers from having to win their prices on the basis of non-comparable prices. In the case of the commercial, the value of a vehicle to be paid for later by the buyer is, by its very nature, still completely unclear. For the consumer, the price indication is ultimately worthless. He could not compare the offer in a meaningful way with the offers of other dealers.

In the Senate’s view, the information under the heading “Further” does not alter the consumer’s deception. The eye-catcher of the advertising is the depiction of the vehicle with its name and the price indication. Between this information and the explanation under the item “Further” there were several pages of extensive text. It is to be assumed that a consumer had already dealt with the type of car and its technical details when searching for a new vehicle. He therefore regularly needs only the purchase price and little further information to evaluate an offer. A not inconsiderable number of consumers will decide for or against taking a closer look at the offer and may contact the retailer without having read the advertisement in full.

In addition, the Senate also rated the advertisement as misleading because the vehicle was referred to as a “new vehicle” in the eye-catcher and only under “further” the condition of a daily registration was included. The consumer expects a vehicle without a daily registration when indicating “new vehicle”, especially since the search function of the platform distinguishes between “new vehicle” and “day registration”.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.