In its judgement of 4 October 2007, Case No. I ZR 143/04, the First Civil Senate of the Federal Court of Justice (BGH), which is responsible, inter alia, for competition law, commented on the manner in which the information on turnover tax and on delivery and shipping costs required under the Price Indication Ordinance must be indicated in internet trade.
According to the Price Indication Ordinance, a mail order company is obliged to indicate, in addition to the final price of the goods, that the requested prices include VAT and whether additional delivery and shipping costs are incurred. He is also obliged to clearly allocate this information to the offer or advertisement and to make it easily recognisable and clearly legible or otherwise easily perceptible.
In the case underlying the decision, a trading company had designed its website in such a way that the information on VAT and on delivery and shipping costs could neither be found on the first web page that opened with the picture and description of the advertised products nor on another page with more detailed information on the respective products, but only under the menu items "General Terms and Conditions" and "Service" as well as after placing the goods in the virtual shopping basket. If an internet user wanted to find out about the information required by the Price Indication Ordinance before starting the ordering process, he had to search the General Terms and Conditions as well as the information under "Service" on his own initiative. A competitor objected to this and sued the retailer for injunctive relief, information and damages. The Regional Court and the Higher Regional Court of Hamburg had upheld the action on the grounds that the information on VAT and on delivery and shipping costs had to be on the same website as the price directly next to the illustration or description of the goods offered.
The Federal Supreme Court confirmed that the objectionable internet presence of the defendant mail order company did not comply with the legal requirements. However, it disagreed with the opinion of the lower courts that the Price Indication Ordinance requires that the additional information about the value added tax and the delivery and shipping costs be provided on the same website on which the goods are offered and the price is stated. The internet user was aware that in mail order business, delivery and shipping costs were usually incurred in addition to the final price. He also assumed as a matter of course that the prices indicated included value added tax. It was therefore sufficient if the information in question was provided immediately and in a readily recognisable and easily perceptible manner on a separate page which the internet user had to call up before initiating the order process when taking a closer look at the offer.
BGH, Judgment of 4 October 2007 - I ZR 143/04 - Shipping costs
Previous instances:
Hamburg Higher Regional Court (OLG Hamburg), judgment dated August 12, 2004 - 5 U 187/03 -
Hamburg Regional Court (LG Hamburg), judgment of November 4, 2003 - 312 O 484/03 -
Source: Press release of the press office of the Federal Court of Justice of 4 October 2007 www.bundesgerichtshof.de
If you have any questions on this topic, please do not hesitate to contact Goldberg Rechtsanwälte.
Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)
m.ullrich@goldberg.de
