Base price in 'immediate proximity' not required?

A currently contested question is whether the base price must always be stated in 'immediate proximity' to the total price. This is required by the Price Indication Ordinance (PAngV). However, some courts, most recently the Higher Regional Court (OLG) Hamburg, have rejected this 'proximity requirement'.

In proceedings before the Regional Court (LG) Hamburg (Urt. v. 20.08.2019, Az. 406 HKO 106/19), an online trader offering vitamin preparations was sued by an interest group. The association was of the opinion that the trader had acted contrary to the provisions of the Price Indication Ordinance (PAngV) by failing to state the base price in 'immediate proximity' to the total price and had therefore acted in breach of competition law.

The entrepreneur, however, was of the opinion that the 'proximity requirement' contained in the PAngV between base price and total price was untenable and therefore invalid from the perspective of interpretation in accordance with European law.

Base price in immediate proximity to total price not required

The Regional Court (LG) Hamburg decided that the base price does not have to be stated in 'immediate proximity' to the total price.

According to the Price Indication Ordinance, a base price must be stated when goods in pre-packaged form, open packaging or as sales units without wrapping are offered to consumers on a commercial or business basis or regularly according to weight, volume, length or area. The indication of a base price is also required when such products are merely advertised to consumers.

While the PAngV requires that the '(…) base price is displayed in immediate proximity of the total price', according to the European Price Indication Directive, it is only required that the base price is 'unambiguous, clearly identifiable and legible'.

Proximity requirement is contrary to European law

The judges made clear that, owing to the full harmonisation of European law, the German Price Indication Ordinance must not impose stricter requirements than the relevant provisions of European law.

The aforementioned passage of the Price Indication Ordinance should therefore be interpreted in accordance with European law to mean that it is sufficient if the base price is stated unambiguously, clearly identifiable and legible, even if this does not occur in immediate proximity to the total price.

The Higher Regional Court (OLG) Hamburg also agreed with this legal view (OLG, Beschl. v. 22.4.2020, Az. 3 U154/19). In addition, this position is also held by the Regional Court (LG) Oldenburg (Urt. v. 18.04.2019, Az. 15 O 494/19).

Conclusion

Contrary to the wording of the Price Indication Ordinance, the base price does not have to be stated in 'immediate proximity' to the total price. Rather, the base price must be stated unambiguously, clearly identifiable and legible. A certain proximity of the base price to the total price is still required, since it can only be clearly identifiable and legible in that case. But this proximity no longer has to be 'immediate'.