Advertising with a 19% discount can be anti-competitive

The First Civil Senate of the Federal Court of Justice (BGH), which is responsible inter alia for competition law, has ruled that advertising a 19% discount is anti-competitive if the advertisement does not clearly and unambiguously state that the discount can only be claimed for goods in stock in the shop.

The parties are competitors in the field of trade in photo and video cameras. The defendant, which operates a corresponding store in Stuttgart-Feuerbach, advertised a discount in a brochure with the following text:

"Only today 3 January Photo and video cameras without 19% VAT!*". The asterisk note of the leaflet stated "Save a full 19% off the retail price".

On 3 January 2007, two employees of the plaintiff visited the defendant's shop and received a 19% discount on the sales price when they purchased a camera. When they asked whether goods not in stock could also be ordered, they were told that this was possible. However, they were not granted the discount on the price, which could only be obtained on 3 January on goods in stock in the shop.

The plaintiff considers the advertising of the price reduction to be anti-competitive due to a violation of the transparency requirement and has filed a claim against the defendant for injunctive relief, a declaration of liability for damages and the provision of information. The Regional Court of Stuttgart had upheld the action. The Stuttgart Higher Regional Court confirmed the decision of the Regional Court. In a case that did not reach the Federal Supreme Court, the Karlsruhe Higher Regional Court had held that the same advertisement, commissioned by a company belonging to the same group as the defendant, was unobjectionable under competition law.

The Federal Supreme Court dismissed the appeal of the defendant trading company against the judgement of the Higher Regional Court of Stuttgart. The advertised price reduction is a sales promotion measure. The conditions for taking advantage of such a measure must already be clearly and unambiguously stated in the advertisement. The defendant's advertising does not meet these requirements. In order for the consumer to be able to make his purchase decision in the knowledge of all relevant circumstances, he must be able to inform himself about the conditions set by the trade for claiming a discount. This also includes the fact that an announced discount is not granted on goods that are not (any longer) in stock but can be ordered. If the trade wants to limit the announced discount in this way, it must already point this out in the advertising.

 

Judgment of the BGH of 10 December 2009 I ZR 195/07

 

Lower courts:

Stuttgart Higher Regional Court - Judgment of 22 November 2007 2 U 45/07 (WRP 2008, 517)

LG Stuttgart - Judgment of 16 May 2007 39 O 46/07 KfH

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law

through

Michael Ullrich, LL.M. (Information Law)

Lawyer and

Specialist lawyer for information technology law

E-mail: info@goldberg.de

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