No more pricing tricks: CJEU sets strict requirements for advertising price reductions

Advertising special offers and discounts in retail is an effective and long-established way to draw attention to products. However, the precise wording and presentation of price-reduction advertising are subject to specific legal requirements that should be observed. The Court of Justice of the European Union (CJEU) has now ruled on the exact requirements in a dispute between the Baden-Württemberg consumer association and Aldi Süd Dienstleistungs SE & Co. OHG (referred to below as Aldi).

Lowest price in the last 30 days

For around two years, the European requirements under Article 6a(1) of Directive 98/6/EC, as amended by Directive (EU) 2019/2161, have applied in German law through section 11(1) of the German Price Indication Ordinance (PAngV) in conjunction with section 5a of the German Act Against Unfair Competition (UWG). Whenever a trader announces a price reduction to consumers, it must state the lowest total price it applied during the preceding 30 days.

In a brochure, Aldi advertised pineapples and bananas as “Preiskracher” (“knockout prices”), as described below:

In the centre of each price panel, a price was shown in large figures (EUR 1.29 for the bananas and EUR 1.49 for the pineapple), while another price was shown in smaller, crossed-out figures in the bottom right-hand corner (EUR 1.69 in each case). The bananas also displayed a percentage reduction of “- 23%”. The pineapple offer did not show a percentage, but carried the statement “Preis-Highlight” (“price highlight”). Beneath each was the following text: “Last selling price. Lowest price in the last 30 days:”, followed by a third price (EUR 1.29 for the bananas and EUR 1.39 for the pineapple).

It is noticeable that the percentage discount — and the presentation of the so-called “price highlight” — was expressly calculated not on the basis of the lowest offer in the previous 30 days, but on another previous price. The lowest price appeared only in a separate note. This was not enough for the CJEU, which instead largely found in favour of the Baden-Württemberg consumer association.

Misleading consumers

The CJEU made clear that stating the lowest price in the previous 30 days is intended to ensure fair and transparent pricing and strengthen consumer protection. Retailers must not be able to raise a price briefly and then advertise a supposed reduction.

It must therefore be required “that a price reduction for a product announced by a trader in the form of a percentage, or of a promotional statement intended to stress the advantageous nature of the announced price, must be determined on the basis of the ‘prior price’ within the meaning of paragraph 2 of that article.”

Reference to Nuremberg Higher Regional Court (judgment of 24 September 2024 - 3 U 460/24)

In addition to the CJEU’s decision, the Nuremberg Higher Regional Court recently had to rule on a similar question. It too focused on the requirement that an average consumer must be able to identify the lowest total price in the previous 30 days without difficulty.

Practical conclusion:

The following takeaways should therefore be noted:

• Any reference to price reductions must be based on the genuinely lowest offer in the previous 30 days.
• The average consumer must be able to identify this easily and unambiguously.
• A clarifying note in a footnote alone is not sufficient.
• Other previous prices that do not correspond to the price required by law should not be stated.
• These requirements apply both when calculating a percentage saving and when making a general reference to a price reduction (see “price highlight”).

Even when these points are followed, effective mitigation of liability risks under unfair competition law can only be achieved through high-quality professional advice tailored to the individual case. As an experienced legal service provider, Clarius offers flexible ways to support your company.

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