A price quoted online that is objectively too low and therefore wrong is fundamentally anti-competitive misleading. The Higher Regional Court of Frankfurt aM recently had to decide whether this also applies in the event that an employee accidentally posts a wrong price due to an input error. Read more about the decision below.
I. The facts
The defendant sold electrical appliances via an online shop. On November 27, 2020, she advertised a computer case at a special price of €114.90.
When a customer ordered the item on December 2nd, 2020 at this price, the defendant canceled the order and offered the case for €175.00.
The defendant rejected the customer’s two complaints, saying that there was an incorrect price quoted in the online shop, which was based on an incorrect transmission by the supplier, and that the price quoted was extremely uneconomical.
The plaintiff, a competition association that had been informed about the incident, finally warned the defendant on December 10, 2022. The defendant did not issue a cease-and-desist declaration, but stated that it now wanted to sell the item at the lower price because the cancellation was an error by an employee.
The LG Gießen dismissed the lawsuit with a judgment of October 15, 2021 (Az. 6 O 11/12). With an appeal to the Higher Regional Court in Frankfurt am Main, the plaintiff continued to pursue his first-instance claim.
II. The decision
The appeal was successful in the matter. The OLG Frankfurt aM ruled on November 24th, 2022 (Az. 6 U 276/21) that the plaintiff was entitled to an injunctive relief under §§ 8 Para. 1, Para. 3 No. 2, 3 Para. 1, 5 Para. 1, Para. 2 No. 2 UWG.
The price quoted is untrue and therefore misleading.
In the present case, the traffic will expect that they can actually purchase an item offered in the online shop at the price stated. Although the public knows of any possible changes in individual cases, it does not occur to them that the price will be increased by more than 50%. The defendant also actually refused a delivery at the offer price not only once, but even a second time at the request of the plaintiff.
One does not come to a different conclusion by the fact that the defendant states that it was an error on the part of the responsible employee, who did not see from the system that the item was on sale. Because the starting point for unfairness is the relevant untruthfulness or suitability for deception of the information when interpreted in accordance with the directive. An intention to deceive is for the § 5 UWG, which implements the misleading protection of Art. 6 UGP-RL, is not necessary. Other motives of the entrepreneur are also irrelevant within the framework of § 5 UWG.
There is also no lack of suitability, as required under Section 5 (1) UWG, to induce the consumer to take a commercial action that he would otherwise not have taken. It is obvious that price is a crucial element in the purchase decision, especially when it comes to a €50 discount on a €150 item.
It is irrelevant that it was only an individual case, since suitability depends on the specific action and in the specific situation it is possible for the consumer to make the business decision.
Furthermore, it is not important that the defendant gave the customer the actual price before the conclusion of the purchase contract, since the buyer’s purchase decision had already been made at that moment. The business decision is independent of the actual conclusion of the purchase contract.
According to the legal definition of § 2 Para. 1 No. 9 UWG, the business decision is any decision made by the consumer or other market participant as to whether, how and under what conditions he/she concludes a transaction, makes a payment, keeps or sell goods or services or wishes to exercise a contractual right in relation to a good or service, whether or not the consumer or other market operator decides to act.
According to the ECJ, the concept of a commercial decision within the meaning of the underlying Art. 2 lit. k UGP-RL, which the consumer is likely to be prompted to make by misleading pursuant to Art. 6 (1) UGP-RL, is broadly defined. According to the ECJ, not only the decision on the purchase or non-purchase of the product is covered, but also directly related but prior decisions. For example, entering the shop or looking for a sales portal on the Internet. According to this, misleading could also be important if the final market decision is not made, ie the purchase of the goods, but the misleading has an attracting effect on traffic.
The potential harm to competitors could thus also be affirmed, since the customer lured into the shop might decide not to buy the misleadingly advertised goods, but in favor of buying a different product. This is the business that the competitors are missing out on. The broad interpretation of the “business decision” not only serves to protect consumers, but also to protect competitors.
In this case, the customer had already made his purchase decision, so that the purchase contract did not come about, but was due to the defendant and not to the customer’s purchase decision.
III. Conclusion
The starting point for the accusation of unfairness in the case of objectively incorrectly low price information is the relevant untruth. Therefore, the only decisive factor is whether a price actually stated in the online shop was incorrect. It is not relevant for the competition law assessment how or for what reason the false information came about. For example, the error of an employee does not change the classification of an incorrect price in the online shop as anti-competitive misleading.
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Susanna Milrath
Scientific Associate