Discount tricks
in the
crosshairs
Discount tricks
in the
crosshairs
from
Federal Court of Justice clarifies requirements for price information in discount advertising: The indication of the lowest price of the last 30 days may not be overlaid by other information on the price.
Price reduction in brochure misleading
With Judgment of 09.10.2025, Ref. Federal Court of Justice I ZR 183/24 the Federal Court of Justice confirmed in the last instance that the mere indication of a 30-day best price in a footnote does not meet the requirements of the Price Indication Ordinance and is to be regarded as anti-competitive if it is superimposed by a reference to other price information. This was preceded by a dispute between a food discounter and the Wettbewerbszentrale. The Wettbewerbszentrale had taken action against the discounter on the basis of an advertising brochure.
Specifically, the discounter advertised a coffee product in the brochure at a purchase price of 4.44 euros. Next to it was another, smaller price of 6.99 euros and the indication of a price reduction of – 36%. Behind the 6.99 EUro was a footnote. The corresponding footnote at the bottom of the page stated: “Previous 30-day best price, except:”, followed by a list of several products, including the coffee product with a price of 4.44 euros. In the previous week, the discounter had offered the coffee product at a price of 6.99 euros. Two weeks earlier, it was offered at a price of 4.44 euros. The Wettbewerbszentrale objected to the advertising as anti-competitive and took action against the discounter. With success:
When announcing a price reduction for a product, the party obliged to indicate a total price must state the lowest total price that they have applied to the advertised product within the last 30 days prior to applying the price reduction in a manner that is clear, unambiguous, and comprehensible to the consumer concerned.
Comparison price must be unambiguous, clearly recognizable and clearly legible
The Federal Court of Justice agreed with the decisions of the previous instances and deemed the advertising to be misleading. According to the
Overall view decisive
In its decision, the Federal Court of Justice worked out that it is not sufficient to state the lowest total price of the last 30 days in any way to avoid an infringement. The court left open the question of whether the statement “- 36 %” should already be regarded as anti-competitive if it merely refers to the reference price of the previous week. The Federal Court of Justice referred to the findings of the court of appeal and considered the advertising at issue to be misleading on the basis of an overall assessment. The Court of Appeal found it problematic that four pieces of price information were displayed in the disputed advertisement: Price advantage, previous week’s price, current price and 30-day lowest price in the footnote. In the view of the Court of Appeal, this caused more confusion than benefit:
This multitude of information, which is combined in the advertising, is more confusing for the average consumer than creating clarity with regard to the price advantage and the reference price: Rather, by stating the strike price and the resulting percentage discount amount, there is a distraction from the […] relevant reference price
Reference to the lowest price of the last 30 days relevant
The price comparison therefore referred not only to the price previously charged, but also to a strikingly highlighted percentage price advantage. This referred to the price of the previous week and not to the lowest price of the last 30 days. However, the latter is the relevant price for consumers according to the statutory regulations. The reduction is therefore shown twice in a conspicuous manner in relation to the last price charged. The lowest price of the last 30 days, on the other hand, was only mentioned once and less clearly. From the Federal Court of Justice’s point of view, the defendant’s advertising brochure therefore did not meet the requirements for an unambiguous, clearly recognizable and legible manner of the comparative price and was to be regarded as misleading.
Conclusion
With this ruling, the Federal Court of Justice supports consumer-friendly price advertising and puts a stop to discount tricks. The fact that prices are only raised for a short time before a price reduction and then reference is made to this increased price in order to create the impression of a higher price reduction and a particularly low-priced offer is not acceptable as a permissible practice in price advertising. The ruling makes it clear that companies are well advised to seek legal advice in good time when designing planned discount campaigns in order to avoid competition law risks and cease and desist letters.
We are happy to
advise you about
Competition law!
