No more sham discounts: 

The facts
In the present case, Aldi Süd advertised discounted pineapples and bananas in its advertising brochures. A “price highlight” of €1.49 was given for the pineapples, with a crossed-out price of €1.69 next to it. However, the small print stated that the lowest price in the last 30 days was €1.39. A similar picture was seen with bananas, where a price of €1.29 per kilo was advertised with a crossed-out price of €1.69, although the lowest price in the last 30 days was also €1.29. The Baden-Württemberg consumer advice center then filed a complaint against Aldi Süd. It argued that these price indications were misleading because the advertised discounts were not based on the lowest price of the last 30 days, but on a price that had been artificially increased beforehand.

According to Section 11 of the Price Indication Regulation (PAngV), which has been in force in Germany since May 2022, retailers must indicate the lowest total price of the last 30 days for each price reduction and use this as a reference price. This is to prevent consumers from being misled by artificially inflated prices.

The Regional Court of Düsseldorf suspended the proceedings and referred the matter to the ECJ for a preliminary ruling as to whether Article 6a(1) and (2) of Directive 98/6 is to be interpreted as requiring that a price reduction for a product, which is advertised by a trader in the form of a percentage or a promotional statement intended to emphasize the advantageousness of the stated price, is to be determined on the basis of the “previous price” within the meaning of Art. 6a (2) of Directive 98/6.

Decision of the Court
The ECJ ruled in favor of the consumer organization, finding that Aldi Süd's price disclosures violated European law. According to Art. 6a (1) and (2) of Directive 98/6/EC, whenever a price reduction is announced to consumers, the lowest price of the last 30 days must be used as the reference price. The ECJ emphasized that it is not sufficient to simply state the lowest price – it must also be used as the basis for calculating the reduction. The judges made it clear that the practice of increasing prices shortly before a discount promotion in order to then advertise an apparent reduction is not permitted.

In addition, the ECJ stated that Directive 98/6/EC, in conjunction with national regulations such as the German Price Indication Regulation (PAngV), is intended to create a clear and uniform regulation for price reductions in the internal market. This is to prevent companies from gaining competitive advantages through opaque pricing strategies based on misleading information. The judges emphasized that compliance with these requirements is not only in the interest of consumers, but also helps to ensure fair competition in the internal market.

The ECJ ruling is in line with previous decisions that have ruled similar practices to be unlawful. For example, the guidelines on the interpretation of Article 6a of Directive 98/6/EC already emphasized that the 30-day period is intended to ensure that the reference price is real and not just a marketing tool to make the discount appear more attractive.

Practical tip
Companies should carefully check their price advertising and ensure that the lowest price of the last 30 days is used as the reference price for discount promotions. Violations of these requirements can lead to costly warnings. Particularly in online retail, it is important that price information is transparent and correct in order to minimize legal risks.