The German Federal Court of Justice, in its decision of July 16, 2009 (I ZR 140/07), commented on the question of whether a distant seller who is promoting his goods by means of a comparison shopping site (price comparison list) on the Internet has to indicate the shipping costs. According to Sec. 1 para. 2 Price Indication Ordinance (Preisangabenverordnung), in conjunction with Sec. 312 b German Civil Code, for distant agreements, the seller is obliged to indicate, in addition to the final price, whether further delivery and postage costs will be incurred. If applicable, he has to indicate the amount of the costs or the basis of the cost calculation. This information has to be clearly assigned to the advertising, and be easily noticeable and legible or be well perceivable by other means.
In the recent decision, the defendant distributed its electronic goods over the Internet. The products were placed on the comparison shopping site “froogle.de.” For the products shown on this site, the shipping costs were not indicated. Only when the consumer clicked on the picture or on the name of the product displayed as a link, he was directed to seller’s own site where the shipping costs were indicated. Because of this site arrangement, a competitor made a claim on the seller. The District Court and the Court of Appeals of Hamburg upheld the complaint of the competitor. According to the Court of Appeals, the linked picture or the name of the product are not descriptive links that could clearly indicate that the consumer could get further information about the shipping costs through these links.
The Federal Court of Justice affirmed this decision. In the case of price quotation in price comparison lists, the consumer should at once see whether the indicated price includes shipping costs or not. The significance of the price comparison, which is usually displayed in a ranking list, depends on this essential information. Under these circumstances, it is not sufficient if the consumer is only informed about additional postage costs at the time he consults the details for a specific product.
The problem of clear quotation of prices on the Internet frequently occupies the courts. The Federal Court of Justice ruled in its decision of February 26, 2009 (I ZR 163/06), that the base price can only be considered to be indicated in the immediate vicinity of the final price, as required by Sec. 2 para. 1 sent. 1 Price Indication Ordinance, if the consumer can perceive both prices at a glance. The defendant was promoting its product on the Internet at a reduced price. Next to the reduced price, the original price was shown in smaller letters and crossed out. The consumer was informed about the base price only on a following site if he clicked on the product. The Federal Court of Justice considered this price presentation as illicit. According to the Price Indication Ordinance, the prices have to be clearly and evidently indicated in order to allow the consumer to get an idea about the total costs. According to the court, a link cannot allow for indication of the base price in the immediate vicinity of the final price since the consumer should perceive both prices at a glance. Unlike the requirements of Sec. 15 German Act for Telemedia Services (Telemediengesetz), mere immediate accessibility is not sufficient to meet the standards of the Price Indication Ordinance. Further, Sec. 4 para. 4 Price Indication Ordinance, according to which prices for goods offered in catalogues or over display screens can be indicated directly next to the pictures of goods but also in separate price schedules, cannot be applied mutatis mutandis to the obligation to indicate the base price that already applies for advertising.