The new regulation raises the following questions in particular:
Obligated persons
The regulation in § 11 PAngV concerns companies in business with consumers. It therefore does not apply in business transactions between companies (so-called “b-2-b”). The regulation also does not apply across companies within a group. Thus, if a company A operates a retail shop, it does not have to indicate the lowest previous total price of a group-affiliated company B, which operates the online shop.
Furthermore, in the legal literature an even narrower approach is sometimes taken (see e.g. Köhler/Bornkamm/Feddersen, UWG, 40th ed., § 11 PAngV marginal no. 9 ff.): The lowest previous total price always refers only to the respective sales channel (e.g. online shop/store), even if they are operated by the same company. The development of case law in this question remains to be seen.
Period of the last 30 days
It is questionable whether the lowest total price which was demanded within a related period of 30 days (so-called “continuous solution”) is to be taken into account or the one at any time within the last 30 days (so-called “punctual solution”).
In our opinion, the view of a punctual solution of the pricing within the last 30 days is likely to prevail.
Relevant is therefore the lowest total price that a retailer has demanded during any period within the last 30 days before the start of the current price reduction. This 30-day period remains the relevant comparison period for the entire reduction period.
Multiple discount promotions within a 30-day period
In the case of a uniform discount promotion, i.e. an increase in the price reduction within a uniform reduction occasion (e.g. end-of-season sale with a discount increasing in time), the previous lowest total price is to be indicated as that from the 30-day period before the start of the uniform discount promotion, not the price after the first reduction.
In the case of a uniform discount campaign with interruption (i.e. interim return to the “normal price”) or in the case of several unrelated discount campaigns within the last 30 days (e.g. Black-Friday-Sale and subsequent End-Of-Season-Sale), on the other hand, the previous lowest total price is the price of the first discount level / discount campaign.
Assortment discounts
It is still unclear what applies in the case of flat-rate price reductions on the entire assortment (e.g. “20 % off all items”) or in the case of discount promotions for owners of customer cards etc. According to the wording of § 11 PAngV n.F., in the case of such advertising, the lowest total price of the last 30 days would have to be indicated for each product subject to the flat-rate discount. This would probably lead to a considerable effort on the part of the retailer.
Discount Calculation / Relation to the Unfair Competition Act
In Germany, there is a long-standing case law on the permissibility of discount price advertisement.
Discount advertising is permissible if the retailer has seriously demanded the original price to which the discount or price comparison refers for a reasonable period of time prior to the discount advertising (even if a discount has been applied in the meantime). It is therefore forbidden to advertise a discount in relation to so called “moon prices” or (more expensive) prices demanded only for a very short period of time. A comparison with the manufacturer’s valid RRP can also be made if it is obvious to the consumer that it is the manufacturer’s recommended price and not the retailer’s previous price.
It remains to be seen whether the regulations in Section 11 PAngV replace the existing provisions on price reduction advertisement under Unfair Competition Act (“UWG”) or whether both regulations will exist alongside. Correctly, the new regulations in § 11 PAngV do not conflict with the existing regulations (developed in the UWG) on price reduction advertisement. It is therefore still possible to advertise the discount in relation to the “normal price” if – insofar as there are deviations – the lowest total price demanded within the last 30 days according to Section 11 PAngV is indicated additionally.
Conclusion
As is often the case with amendments to the law, there are still a number of unanswered questions regarding the interpretation of Section 11 PAngV n.F., which will have to be clarified by the courts in the coming years.
