Rechtsprechung

Price Indication Directive, Article 3 Price Indication Directive, Article 4, 1.

2. Das Wort „Betrachter“ in § 4 Abs 1 PrAG schließt ein, dass von derjenigen Stelle, von der aus das Sachgut betrachtet werden kann (wie etwa vor der Auslage oder im Geschäft vor einem Regal), der für dieses Sachgut verlangte Preis leicht festgestellt und zugeordnet werden kann, ohne dass eine Ortsveränderung notwendig ist, um den Preis zu erfahren.
1. Die auf § 3 Abs 1 PrAG gestützte „Verordnung des Bundesministers für wirtschaftliche Angelegenheiten betreffend Preisauszeichnung für bestimmte Leistungen und für Treibstoffe bei Tankstellen“ enthält eine erschöpfende Aufzählung der Unternehmer, die die Preise ihrer typischen Leistungen, die sie in der angeführten Eigenschaft an Verbraucher erbringen, auszuzeichnen haben.

The Magistrate of Vienna imposed a fine on the appeal applicant, as a manager registered to trade on behalf of a limited company, for allegedly committing two offences under the PrAG. In the first place (fact one), the company had failed to meet its statutory obligation to display prices clearly on its business premises because the bureau de change it operated only displayed the fees for currency exchange on two paper signs – each measuring circa 12 x 10 cm – on the inside of the glass in the corner next to the counter. In the second place (fact 2), with respect to another business operated by the company, goods (two T-shirts, a towel, pens and lighters) were on display and offered for sale in a shop window, but the price was not labelled either in the window display or in the shop itself. For the two offences, the magistrate imposed a fine of 4,000 Austrian Schillings on the defendant (with a 67-hour custodial sentence for non-payment).
In his appeal, the manager of the company complained with regard to fact 1 that the interdiction “nullum crimen sine lege“ had been infringed. The duty to label prices, which he had allegedly infringed and was being fined for under the PrAG, had been laid down in §§ 2 and 3 PrAG. Unlike § 2, which casts the duty to label prices in general terms, the duty to label prices for services under § 3 was linked to a decree by the Minister for Economic Affairs. This decree (BGBl 1992/813) made no mention of bureaux de change, hence the defendant had no obligation to label prices for services either he or the company provided. With regard to fact 2, the appeal applicant argued in essence that he had indeed labelled the prices for the goods in his shop.

The Independent Court of Administration in Vienna (UVS Wien) concurred with the appeal applicant’s argument with regard to fact 1. The relevant decree by the Economics Minister contained an exhaustive list (see headnote 1). Traders operating a bureau de change were not mentioned in this decree. Hence those provisions in the PrAG that relate to services do not apply to a bureau de change. Thus, as the UVS ruled that there was no offence with respect to fact 1, the court lifted the fine and halted proceedings.
The UVS rejected the argument submitted by the appeal applicant on fact 2 that the goods had indeed been properly priced in the shop. It ruled that the term “observer” in § 4 para 1 PrAG implied that it must be possible to ascertain easily the price of the good from the position in which the good is being observed. Since the defendant in no way disputed the accusation that prices for the goods in the shop window were not displayed, the offence could be regarded as having been proved. This was because labelling the prices only in the shop and behind the sales counter (and thus out of sight of those people observing goods in the shop window) constituted a breach of § 4 para 1 PrAG.
In summing up, the UVS indicated that the fine imposed on the appeal applicant applied to two alleged offences. The Court of First Instance had merely handed down a single penalty (a fine and custodial sentence for non-payment). The court should, however, have imposed two fines and two penalties for non-payment. Given the verdicts in the case – partial reversal of the guilty verdict and a halt to legal proceedings on this one offence – the UVS, in accordance with precedents in the Austrian Court of Administration (VwGH), decided that it could not correct the mistake made by the Court of First Instance in imposing a single penalty. It therefore overturned the guilty verdict in its entirety.

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