A reduced VAT rate of 0% has applied to certain solar modules and essential accessories since January 1st, 2023. However, since this depends on certain conditions of use and characteristics of the buyer, the tax reduction causes legal problems with price information on the Internet, especially where the display medium only offers limited space. The LG Koblenz recently ruled on price information for tax-reduced photovoltaic modules in Google Shopping ads and ruled that if a net price is specified, failure to refer to the 0% tax rate and its requirements is misleading.
I. The facts
The defendant, operator of an online shop for photovoltaic products, among other things, advertised accessories for solar modules on Google Shopping and gave as total price the net price, i.e. the price including 0% VAT, without specifically stating the tax rate or pointing out the conditions for its validity in accordance with Section 12 (3) UStG.
The plaintiff, a competitor, saw this as misleading about prices § 5 para. 2 no. 2 UWG.
In its offer design, the defendant wrongly generally assumes that purchasers are entitled to claim the tax reduction under Section 12 (3) UStG.
In fact, the reduction in VAT is subject to a large number of usage and purchaser-related conditions, so that the flat-rate price including 0% VAT could not be achieved by many interested parties at all.
For those not entitled to the tax reduction, the Advertising In other words, a deceptive lure that could prompt them to make a business decision without additional explanations about the applied tax rate of 0% and its requirements, which they would not have made if they knew the circumstances.
The defendant countered this view by arguing that the requirements of Section 12 (3) UStG were by no means as diversified as the plaintiff alleges, and would even be assumed with a gross system output of no more than 30 kilowatts (peak).
Misleading is also ruled out because interested consumers are concerned with tax cuts and subsidies because of the high investment costs associated with the purchase of a solar system and therefore know about the conditions and the scope of the tax reduction in question. There is therefore already a lack of suitability for deception.
After an unsuccessful warning, the plaintiff applied for an injunction to be issued at the Koblenz Regional Court, against which the defendant lodged an objection.
II. The decision
The Regional Court of Koblenz upheld the injunction in its judgment of May 12, 2023 (Az 4 HK O 7/23) and confirmed misleading.
The net price expressed in the Google Shopping ad (price incl. 0% VAT) violates the requirement of price clarity and price truth, because it was not explained at the same time that it contains 0% VAT and under what conditions this tax rate applies .
As a result, reasonable viewers of the offer based on a regular VAT rate of 19% and are subject to the error that the price is universally applicable and achievable without prerequisites.
Because the expressed price but only under the special criteria. If § 12 (3) UStG were actually granted, it would have a misleading lure effect for all those not entitled to the tax reduction and would be lower than the actual purchase price.
The defendant’s argument that tax moderation is the norm and falling out of the scope of application is the exception should not be followed. The presumption rule for system gross outputs of no more than 30 kilowatts (peak) does not apply if there is no obligation to register in the market master data register or if the components are used to expand a photovoltaic system that exceeds the output limit with the expansion.
A general knowledge of the target group of people about the conditions of the tax reduction is also not to be assumed. It cannot be ruled out that interested parties will deal more intensively with the subject area than with the purchase of standard consumer goods because of the high investment costs. According to the current state of affairs, however, it cannot be assumed that there is more extensive knowledge of the provisions of Section 12 (3) UStG and its individual requirements.
The fact that an unjustified attraction effect through net prices for those who are not entitled to tax reductions because of the promotion of solar modules intended with the tax reduction is also unconvincing, because such an effect is reasonably prevented by including the missing references to the 0% tax rate and its conditions could become.
III. Conclusion
With its decision, the LG Koblenz openly contradicts the legal opinion of the LG Gießen, which Resolution of March 24th, 2023 (Az. 8 O 3/23) Net prices for tax-deductible photovoltaic products in Google Shopping ads without further notice had just declared permissible in principle.
According to the Koblenz judges, a price for a potentially tax-reduced photovoltaic product in Google Shopping may only be given as a net price including 0% VAT if at the same time there is a reference in the same field of view that the price includes 0% VAT and its validity depends on the requirements of Section 12 (3) UStG.
The contrary judgment of the LG Koblenz fuels the legal uncertainty with regard to the required price information for photovoltaic products and creates uncertainty, especially with a view to Google Shopping ads.
Unlike the LG Gießen, the LG Koblenz does not take into account the presentational limitations of the advertising medium and fails to recognize that specifically formulated, informative information about the prices quoted on Google Shopping can actually hardly be cited.
The judges also disregard the fact that a person who may not be entitled to a discount can be cleared up at least on the linked product detail page by means of detailed information, without the purchase decision being sufficiently substantiated simply by perceiving the Google Shopping ad as a mere generic offer link with little content .
It is to be hoped that German case law on price information in connection with Section 12 (3) UStG will position itself on a uniform line in the coming months and that a supreme court decision will ensure clarity of application.
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