Acceptance of competitors' discount coupons permitted

Retailers are permitted to accept discount coupons from competitors. Corresponding advertising is also not anti-competitive. The drugstore chain Müller succeeds before the BGH.

The nationwide drugstore chain Müller advertised that customers in its stores could present 10% discount coupons from competitors and receive a corresponding discount on their purchases.

The Competition Authority saw in this advertising a deliberate obstruction of other drugstore markets that had issued the discount coupons. According to the Competition Authority's view, Müller primarily aimed to appropriate the advertising measures of its competitors and to prevent their success. Furthermore, the advertising was misleading, as it suggested to customers that the drugstore chain had agreed with its competitors to mutually recognize discount vouchers. For this reason, the Competition Authority claimed against the drugstore chain for cessation and payment of warning letter costs. In bothlower court instances the Competition Authority's action was unsuccessful.

Decision of the BGH – Acceptance of discount coupons permitted

By judgment of 23.06.2016 – I ZR 137/15 (Press Release No. 107/2016) the BGH has also confirmed that the advertising campaign of the drugstore chain is not anti-competitive.

The company cannot be accused of an improper invasion of a foreign customer base. The recipients of discount coupons are not yet customers of an advertising company for their next purchases. This also applies if the vouchers are sent to holders of a loyalty card or participants in a customer loyalty programme. Whether such vouchers are used is regularly a decision made by the consumer only later. Insofar as the drugstore advertises through displays in its stores, it also addresses its own customers and not those of competitors. Consumers are not prevented from redeeming the vouchers at the respective issuing company. Rather, they are given the opportunity to obtain the same economic advantage also through a purchase from Müller. This further opportunity for consumers to obtain discounts is not an improper obstruction of advertising bycompetitors. The drugstore is free to make particular efforts to win over those customers whom its competitors court with vouchers and customer loyalty programmes.

The BGH also rejected the claim that there was improper misleading, as the advertising clearly refers to the company's own business, which is why no agreed advertising measure could be seen in it.

Conclusion

Insofar as retailers accept discount coupons from competitors as part of their ownadvertising campaign and grant customers appropriate discounts, this constitutes neither a deliberate obstruction of competing companies nor is the corresponding advertising misleading. Retailers are therefore permitted to continue to accept competitors' discount coupons in the future.