According to § 7 PAngV, it is stipulated that a deposit should not be included in the total price, but must be stated separately next to the price. Some courts considered that this provision had no basis in EU law and was therefore not applicable. The ECJ (judgment of June 29th, 2023 – C-543/21) has now decided on submission of the BGH that a deposit is not included in the total price. Read more about the decision of the ECJ in our article.
1. What happened?
The specific case involved a seller of groceries who advertised, among other things, drinks in returnable bottles and yoghurt in returnable jars as part of an offline brochure (leaflet).
The defendant advertised these deposit products in the prospectus, not including the deposit in the total price, but rather with the addition “plus (…) deposit”.
A competitive club saw the pricing as inadmissible because the total price indicated did not include the deposit.
No cease-and-desist declaration was issued in response to the warning issued under competition law, and the competition association filed a lawsuit with the LG Kiel.
2. From the LG Kiel to the OLG Schleswig
The LG Kiel upheld the complaint of the competition club (judgment of June 26, 2019, Az. 15 HKO 38/18). The court held that not including the deposit in the total price constituted a breach of § 1 para. 1 PAngV.
In the appeal, the Schleswig Higher Regional Court (judgment of July 30, 2020, Az. 6 U 49/19) dismissed the complaint of the competition club. The court found that due to the separate disclosure of the pledge there is no right to injunctive relief under the applicable law.
Although the provision of § 7 PAngV is contrary to European law, this provision remains applicable in the opinion of the OLG Schleswig.
The court pointed out that it was “prevented from granting the application for constitutional reasons”.
The plaintiff appealed against this judgment to the Federal Court of Justice.
3. Submission of the BGH
The BGH (decision of July 29, 2021, Az. I ZR 135/20) suspended the proceedings and asked the ECJ questions on the interpretation of the Price Indication Directive (Directive 98/6/EC) and the Directive on Unfair Commercial Practices (Directive 2005/29/EC ) submitted.
The questions for the preliminary ruling to the ECJ were as follows:
“1. Is the term sales price within the meaning of Art. 2 letter a) of Directive (EC) No. 6/1998 to be interpreted in such a way that it must include the deposit amount that the consumer has to pay when buying goods in returnable bottles or returnable jars?”
“2. In the event that question 1 is answered in the affirmative: Are the member states entitled under Art. 10 of Directive (EC) No. 6/1998 to one of Art. 3 Para. 1 and 4 in conjunction with Art. 2 Letter a) Regulation (EC) No. 6/1998 deviating from the regulation as in Section 1 (4) PAngV should be retained, according to which, in the event that a refundable security is required in addition to the payment for a product, the amount of which must be specified next to the price for the product and no total amount must be formed, or does the approach of full harmonization of the Directive (EC) NO. 29/2005?”
4. The decision of the ECJ
According to the clear statement of the European Court of Justice, it is necessary that the sales price, being the final price, includes all mandatory and foreseeable costs that the consumer has to bear and that represent the monetary value of the goods purchased.
It has been clarified that the deposit amount is not part of these costs. Although the consumer is obliged to pay a deposit fee when purchasing a relevant item and to receive a returnable container, he has the right to a refund of the deposit amount as soon as he returns the container.
Furthermore, according to the ECJ, it is essential that the sales price as the final price necessarily includes all unavoidable and foreseeable components that the consumer is obliged to bear and that represent the monetary consideration for the purchase of the respective product.
The ECJ stated:
“Goods in a deposit container cannot be purchased without this container, and the deposit amount thus represents an “unavoidable part of the sales price”. If the consumer returns the container to a point of sale, however, he is entitled to a refund of the deposit amount. (… )
Consequently, the deposit that the consumer has to pay when purchasing goods in a returnable container does not form part of the selling price within the meaning of Article 2(a) of Directive 98/6, as interpreted by that cited in paragraph 19 of this judgment jurisprudence.”
According to the ECJ, the aim of the Price Indication Directive is also to improve consumer information and enable a comparison of sales prices.
As some products may require a deposit, possibly even of different amounts, while other products do not incur a deposit, there is a risk when merging an overall price that incorrect comparisons could be made.
The ECJ further stated:
“Since, firstly, a deposit may be charged for some of these products but not for others, and secondly because different deposit amounts apply depending on the type of container, the inclusion of the deposit amount in the selling price of the product entails the risk for the consumer that making inaccurate comparisons.
(…)
With this in mind, the average consumer, who is reasonably informed, observant and circumspect, is able to add up the price of the product and the amount of the deposit to arrive at the total amount he owes at the time of purchase.”
4. What online traders need to know about deposit declarations
Although the specific case concerned advertising in an offline brochure and the company was active in brick-and-mortar retail, the decision can also be transferred to online retail. Because both the German Price Indication Ordinance and the EU Directive 98/6/EG apply both to offline brochures and to online trade (and thus to advertising and price information on the Internet).
Note for online retailers: a deposit should not be included in the total price, but the amount should be stated next to the total price.
The German legislature already adopted this view when the PAngV was amended (last year) before the judgment of the ECJ § 7 PAngV recorded.
Do you want to sell legally on Amazon, eBay, etsy, Kaufland and Co.? We are happy to secure your sales appearances on all common sales platforms, as well as in our own online shop. Here you will find an overview of our protection packages.
Tip: Do you have any questions about the post? Feel free to discuss this with us in the
Entrepreneur group of the IT law firm on Facebook.