Price Indication Directive, Article 1 Price Indication Directive, Article 1 Price Indication Directive, Article 2 Price Indication Directive, Article 2 Price Indication Directive, Article 3

If a monthly price for a tying offer (mobile phone with a certain mobile phone tariff) is advertised on the Internet, without further price components (connection price and one-off payment for the mobile phone) being indicated, this violates the obligation to state the total price pursuant to Section 1 (7) PAngV (German Ordinance on price regulation), unless the advertising itself - e.g. by means of an asterisk or comparable references - already indicates that further price components are stated on a linked Internet page.

Pursuant to Articles 1 and 2(a), 3 and 4(1) of Directive 98/6/EC on consumer protection, the final price of a product unit must be indicated unambiguously, clearly recognisably and legibly as the selling price including value added tax in the case of products offered by traders to consumers. It is true that the Directive applies only to goods. However, such a range of goods is also at the forefront of the disputed offer of an "iPhone 8 at a rock-bottom price". Therefore, considering that a final price must be indicated under Directive 98/6/EC on consumer protection, it must  contain the unavoidable and foreseeable components of the price which must be borne by the consumer and which constitute the monetary consideration for the purchase of the product in question (ECJ, GRUR 2016, 945, nos. 31 and 37 - Citroën/ZLW). This corresponds to the provision of paragraph 1 (7) of the German Ordinance on price regulation, in the version applicable since July 1, 2018.

The defendant  advertised the conclusion of tying agreements with individual price components in business dealings for the purpose of competition with consumers on the Internet, without simultaneously referring to the one-off costs of the mobile telephone, the connection price, and the minimum contract term of the mobile telephone tariff.

The applicant challenges the defendant's advertising in dispute under competition law on the grounds of a breach of Article 1 paragraphs 1 and 6 of the German Ordinance on price regulation and on the grounds of misleading advertising under paragraph 5 (1) sentence 2 no. 2 of the German Act against Unfair Competition (UWG).

The provisions of Paragraph 1(1), (6) and (7) of the German Ordinance on price regulation also have their necessary (sole) basis in Union law - in so far as the offer of goods is at issue - in Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers.

If a monthly price for a tying offer (mobile device with a specific mobile communications tariff) is advertised on the Internet without other price components (price of the connection and single payment for the mobile device) being indicated,  is it considered to be unfair competition?

Does it violate paragraphs 1(1), (6) and (7) of the German Ordinance on price regulation and the Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers?

Pursuant to Articles 1 and Article 2(a), Article 3 and Article 4(1) of Directive 98/6/EC on consumer protection, the final price of a product unit must be indicated unambiguously, clearly recognisably and legibly as the selling price including value added tax in the case of products offered by traders to consumers.

Therefore, considering that a final price must be indicated under Directive 98/6/EC on consumer protection, it must  contain the unavoidable and foreseeable components of the price which must be borne by the consumer and which constitute the monetary consideration for the purchase of the product in question. This corresponds to the provision of paragraph 1 (7) of the German Ordinance on price regulation.

The defendant's attacked advertising infringes § 3a UWG and § 1 (7) PAngV.

Ҥ 1 PAngV. Basic provisions

(7) The information pursuant to this Regulation must be in accordance with the general perception of the public and the principles of price clarity and price accuracy. Anyone who is obliged to provide information in accordance with this regulation must clearly assign it to the offer or advertisement and make it easily recognisable and clearly legible or otherwise easily perceivable. When breaking down prices, overall prices must be highlighted”.

The term ‘offering’ is not defined  in Directive 98/6/EC on consumer protection nor in the German Ordinance on price regulation. However, as far as goods are concerned, it must - in conformity with the Directive - be interpreted according to the standard of Articles 1, 2 and 3 of Directive 98/6/EC on consumer protection as interpreted by the European Court of Justice.

That is the position in the dispute. On the basis of the advertising in accordance with Annexes 1 and 2 to the application for a decision, the targeted consumer assumes that he can purchase the offered "iPhone 8 at a great price" for € 39.99 per month including the mobile telephone tariff offered, without any further price components being added.

Volltext: Volltext

Keine Ergebnisse verfügbar

Keine Ergebnisse verfügbar

The defendant's appeal against the judgement of the Hamburg Regional Court of 17 July 2018 is dismissed. The respondent is to bear the costs of the appeal proceedings. The judgement is provisionally enforceable. In its appeal, the respondent challenges the judgement of the Hamburg Regional Court of 17 July 2018 confirming the temporary injunction of 4 May 2018. The defendant was prohibited from advertising the conclusion of tying agreements with individual price components in commercial relations in order to compete with consumers on the Internet, without simultaneously referring to the one-off costs of the mobile phone, the connection price, and the minimum contract duration of the mobile phone tariff. This practice violates the German Ordinance on price regulation and the Directive 98/6/EC on consumer protection or in the German Ordinance on price regulation.