Total prices must always be stated to consumers, which include both sales tax and all price components. Against this background, the LG Hanover decided how the levying of small quantity surcharges for low order values should only be assessed as an additional item in the shopping cart, but not as part of the total price. You can read more about the judgment here.
I. The facts
The defendant sold vacuum cleaners through an online shop. On an associated subpage, the defendant stated a total price of 14.90 euros for filter bags for a Vorwerk vacuum cleaner. The price information had an asterisk on the right.
There was a button underneath that said “Add to Cart.” To the right of this button was another button, white and labeled “More Info”.
When the mouse was moved over the asterisk, the following text appeared: “incl. VAT plus additional costs”. The associated price of 14.90 euros did not change. If you clicked on the asterisk, you were redirected to a general information page where you could read the following:
extra costs
We do not charge a fee for using the payment methods invoice, PayPal, direct debit and credit card. Depending on the value of the goods (from €50), we grant a discount of 2% when using the advance payment method. Depending on the value of the goods, a non-refundable processing fee of between €3.95 (from a value of €11) and €9 (under a value of €11) may apply. From a goods value of €29, this processing fee generally does not apply.
Two items finally appeared in the shopping cart. On the one hand, the product at the stated price of 14.90 euros and, on the other hand, an amount of 3.95 euros, noted with the information “Surcharge/discount for small quantities (not applicable for purchases over €29)”. This increased the actual purchase price to 18.85 euros.
The plaintiff, the Federal Association of Consumer Organizations and Consumer Associations, considered this behavior to be anti-competitive and warned the defendant in a letter dated June 8, 2022. However, the defendant did not issue a cease-and-desist declaration and the case ultimately went to court.
II. The decision
In its judgment of July 10, 2023 (Az: 13 O 164/22), the LG Hanover classified the defendant’s behavior as a clear violation of the Price Information Ordinance (PAngV). The entrepreneur must provide consumers with the total price including all additional costs.
1.) General information about the small quantity surcharge
The small quantity surcharge is a price surcharge that is levied if the order does not reach a minimum order value determined by the seller. This is a price correction that is intended to prevent the fixed costs for packaging, delivery notes, etc. from being amortized in the case of small order quantities and the seller being left with any costs.
It should be noted that entrepreneurs who direct their offers to consumers, in accordance with § 3 para. 1 PAngV are obliged to indicate total prices.
According to Section 2 No. 3 PangV, the total price is the price including sales tax and other price components.
The fact that surcharges for small quantities are other price components within the meaning of Section 2 No. 3 PAngV is considered to be a legally established opinion. In its judgment of June 28, 2012 (Az: I-4 U 69/12), the Hamm Higher Regional Court had already decided that they should be included in the total price.
2.) Specific result in the case
Since the defendant did not state the total price of 18.85 euros for the item in dispute “Filter bags FP200” for the Vorwerk Kobold VK 200, he was against this when advertising his items on the Internet Section 3 Paragraph 1 PAngV violated.
Section 2 No. 3 PAngV regulates that the “total price” is the price that must be paid for a good or service including sales tax and other price components and represents the monetary consideration for the purchase of a product. This is the actual total fee to be paid.
The “other price components” meant all unavoidable, foreseeable price components to be borne by the consumer, which constituted monetary consideration for the purchase of the product in question. These must be included in the “total price” to be stated.
According to these principles, the processing fee charged by the defendant in the amount of 3.95 euros, which is in addition to the stated purchase price of 14.90 euros, represents an unavoidable, foreseeable and mandatory price component and must therefore be included in the total price.
The fact that the small quantity surcharge does not apply if several small products are purchased and the purchase value exceeds 50 euros does not change this. The elimination of the flat rate does not represent a “choice” for the customer. Rather, it is in fact similar to a “quantity discount”.
For the specific item concerned, however, the defendant’s flat-rate processing fee represents a compulsory fee to be paid in return for the purchase. This is also clear from the designation “small quantity surcharge” in the shopping cart. The purpose of this is to encourage people to buy additional products in order to eliminate the surcharge.
The meaning and purpose of the regulation, which is to provide consumers with the best possible information and to make it easier for them to compare prices, also supports such an understanding. When comparing the price of the item with comparable items, the total price to be paid (including the processing fee) is ultimately decisive.
The defendant’s behavior makes it much more difficult for consumers to compare prices.
It should be noted that when comparing prices, the average consumer regularly compares the price of a single product and does not compare the price of a large number of products with that of a large number of items from other providers.
III. Conclusion
Small quantity surcharges, which are levied when the minimum order value is not met as defined by the seller, are “other price components” within the meaning of Section 2 No. PangV and must be included in the total price. Their separate listing is not permitted.
We show you how to display legally compliant prices for small-quantity surcharges with helpful wording templates in this post.
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