In a decision pronounced on 16 July 2009, the First Civil Senate of the Federal Court of Justice (BGH), which is responsible, inter alia, for competition law, commented on the question whether a mail order company advertising goods via a price search engine (price comparison list) on the internet must also point out shipping costs that are added when the goods are purchased.
According to the Price Indication Ordinance, a trader is obliged to indicate whether additional delivery and shipping costs are incurred in addition to the final price of the goods. If applicable, he must indicate their amount or basis of calculation. This information must be clearly attributed to the advertisement and made easily recognisable and clearly legible or otherwise easily perceptible.
In the case underlying the decision, a company selling electronic products via the internet had placed its goods in the price search engine "froogle.de". The price indicated there for each product did not include the shipping costs. Only when the product image or the product name marked as an electronic reference was clicked on, one was led to a separate page of the supplier on which the shipping costs were indicated next to the price of the product.
A competitor filed a claim for injunctive relief against the mail-order company.
The Regional Court and the Higher Regional Court of Hamburg upheld the action. The Court of Appeal based its decision on the fact that clicking on the product image and the product name in the contested advertisement did not constitute a "speaking link" that clearly conveyed to the consumer that he could access further information on the shipping costs via it.
The Federal Supreme Court rejected the mail order company's appeal. In the case of price quotations in price comparison lists, the consumer must be able to see at a glance whether the stated price includes shipping costs or not. The informative value of the price comparison, which is usually presented in a ranking list, depends on this essential information. Under these circumstances, it was not sufficient if the interested party was only made aware of the additional shipping costs when he looked more closely at a particular offer.
Judgment of the Federal Court of Justice of 16 July 2009 - I ZR 140/07 - Indication of shipping costs in price comparison lists
Lower courts:
LG Hamburg, judgement of 16 January 2007 416 O 339/06
OLG Hamburg, judgement of 25 July 2007 5 U 10/07 Karlsruhe, 17 July 2009
Source: Press release of the Federal Supreme Court
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: Info@goldberg.de
