Logistics flat fee

Is a logistics flat fee to be regarded as an unavoidable, foreseeable and mandatory price component and to be included in the total price? The Higher Regional Court (OLG) Bamberg investigated this question.

A retailer operated an online shop where he offered office materials to business and private customers. The respective product pages contained an image of the product with the requested price including and excluding VAT. The customer also received information on this page that delivery would be free of shipping costs from €49 (net).

However, directly below the price information was a link with the note "plus shipping". When the customer clicked on this link, he learned that the online retailer distinguished between a "freight flat fee" of €2.95 net and a "logistics flat fee" of €1.95 net.

For orders of more than €49.00 net, only the freight cost flat fee was waived; the logistics flat fee was always demanded regardless of the goods value. A customer received the same information after placing the product in the shopping cart.

Due to this practice, the entrepreneur was given a warning and requested to submit a legally binding declaration of discontinuance. The behaviour of the online retailer was seen as a violation of the PAngV. The retailer did not include all unavoidable and foreseeable price components in the price information that are obligatory for the consumer to bear. This included the logistics flat fee.

Even if this could be shown separately, there would be a lack of transparent presentation of the gross price. Furthermore, the advertising of the price would misleadingly deceive the target audience. The retailer did not disclose to the addressee that it charged a mandatory logistics flat fee. The addressee would only learn of this in the course of the order process and therefore too late.

The retailer refused to submit the declaration of discontinuance. Subsequently, the retailer was sued before the Regional Court (LG) Bamberg, which dismissed the action. In the course of the appeal, the Higher Regional Court (OLG) Bamberg had to deal with the matter.

Judgment of the Higher Regional Court (OLG) Bamberg on the separate logistics flat fee

The Higher Regional Court (OLG) Bamberg (Judgment of 03.03.2021, Case Number 3 U 31/20) assessed the practice of the online retailer as a breach of competition law. The logistics flat fee should have been included in the final price to be paid including VAT.

The judges first referred to the PAngV. Any person who offers goods to consumers on a commercial or business basis or regularly in any other manner must state the prices that are to be paid including VAT and other price components (total prices). The "other price components" must also be included in the "total price" to be stated.

According to the definition of the EuGH, this includes all unavoidable and foreseeable components of the price that are mandatory for the consumer to bear and that constitute the monetary consideration for the acquisition of the product in question. The decisive factor here is whether the costs are incurred in any case and without customer choice. The total price is, "in short, ... thus the actual and mandatory total consideration".

Logistics flat fee must be included in the total price

The logistics flat fee, which the retailer demanded in a fixed amount with every purchase, was, according to these principles, to be regarded as an unavoidable, foreseeable and mandatory price component. Therefore, the logistics flat fee should be included in the total price.

The court pointed out, with reference to the EuGH, that the logistics flat fee was to be distinguished from the additional costs for transporting or delivering the purchased goods to the location chosen by the consumer. This is because the logistics flat fee is an unavoidable and foreseeable component of the price.

This already spoke against the online retailer's view that the logistics flat fee was to be classified as additional freight, delivery or shipping costs or other costs within the meaning of the PAngV.

Conclusion

Repeatedly, in fierce price competition on the internet, attempts are made to keep prices visually small and then increase the price through "flat fees". However, unavoidable, foreseeable and mandatory price components such as a logistics flat fee must be included in the total price.