European e-Justice Portal - Case Law
Close

BETA VERSION OF THE PORTAL IS NOW AVAILABLE!

Visit the BETA version of the European e-Justice Portal and give us feedback of your experience!

 
 

Navigation path


menu starting dummy link

Page navigation

menu starting dummy link

Case Details

Case Details
National ID 5 U 17/04
Member State Germany
Common Name link
Decision type Other
Decision date 23/12/2004
Court Oberlandesgericht (Appellate court, Hamburg)
Subject
Plaintiff
Defendant
Keywords

Distance Selling Directive, Article 4, 1.

1. Neither § 312 c (1) No. 1 BGB (Bürgerliches Gesetzbuch – German Civil Code) nor Art. 4 (1) Direcitve 97/7/EC place a duty on a business active in distance sales to provide the information required according to § 1 (1) BGB-InfoV (Verordnung über Informations- und Nachweispflichten nach bürgerlichem Recht – Regulation on Information Duties and Obligations to Produce Supporting Documents According to Civil Law) within its advertising measures.
The parties are competitors. They distribute fashion and accessories by distance means. In May 2003, the respondent advertised a special offer for a woman’s cashemere pullover and a woman’s quartz wristwatch in various Hamburg media. The first matter at issue concerned an advertisement in print media. This contained a depiction and accompanying brief description of the products as well as the respective sale prices without reference to the fact that these prices contained value added tax. Next to the price details, an asterisk referred to a footnote which stated postage costs of 5 euros per delivery. The following was highlighted: “order now at www.madelaine.de or telephone 0180/5 300 800”. Furthermore, the respondent commissioned radio advertising for the same products. These gave the prices and made a reference to the postage costs. They also gave the website and the telephone number of the respondent for placing orders. The respondent also advertised these products on television in a corresponding manner.

The applicant regards this advertising as contrary to fair competition and seeks an injunction against the respondent. It asserts that in the aforementioned forms of advertising by the respondent fail to satisfy the information duties towards consumers according to §§ 312 b, 312 c (1) BGB, § 1 BGB-InfoV. In addition, it submits that the respondent breaches § 1 (2), 6 PAngV (Preisangabeverordnung – Price Details Regulation) in respect of the pricing information.
The Senate stated that to correspond to the protective theory of these rules in distance contracts, the consumer must merely be informed of the necessary information at a point in time in which he under no obligation at all to enter into a contract or even feels already contractually bound. Such a disclosure of information can also occur directly following the consumer making contact in response to an advertisement. This will always be the case if, during the ordering process, the possibility still remains to give the consumer the necessary information before he makes a binding declaration aimed at concluding the contract or at least before is under the impression that he cannot hinder the conclusion of a contract by merely doing nothing.
The Senate further stated that these principles would in any event apply to advertising such as in the present case, which are to be qualified as invitations to treat. However, the contrary would be the case if the advertising provides that the consumer could give a binding offer to the business to conclude a distance contract according to § 145 BGB, be it by telephone or internet, e.g. through an order form contained in the advertisement.
According to the opinion of the Senate, the advertising measures at issue do however breach § 1 (2) No. 1 PAngV, as the respondent must specify in distance sales that the price given in an advertisement contains value added tax. This applies not only to the offering, but also to advertising with prices. However, the respondent’s practice of referring, via an asterisk next to the respective price information, to a footnote on the same page displaying the requisite postage costs, is not to be criticised. In addition, the one-off giving of the postage costs in the context of radio advertising is not to be challenged.
Full Text: Full Text

No results available

No results available