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BGH, judgment of 28.03.2019, Ref.: I ZR 85/18

When offering coffee capsules, the basic price for the coffee powder contained in the capsules must also be stated

Tenor

The appeal against the judgment of the 9th Civil Senate of the Higher Regional Court of Koblenz of April 23, 2018 is dismissed at the defendant’s expense.

By right.

Facts of the case

The plaintiff, Verband Sozialer Wettbewerb e.V., is a registered association whose statutory duties include safeguarding the commercial interests of its members and, in particular, respecting the rules of fair competition. It complains that on November 23, 2016, the defendant offered coffee capsules from various manufacturers for the “Nespresso” capsule system in packs of ten each in the electrical store it operates in K. using a display stand. The display indicated the respective type of capsules, the quantity of ten capsules per pack and the price per pack, but not a base price for the coffee powder contained in the capsules. The packs indicated the filling weight of all capsules contained in a pack.

The plaintiff objects to this offer from the point of view of a breach of law due to a breach of the obligation to indicate a basic price in accordance with Section 2 para. 1 sentence 1 PAngV as anti-competitive.

Following an unsuccessful warning, the plaintiff filed a claim against the defendant for injunctive relief and reimbursement of warning costs. He requested that the defendant be ordered to cease and desist from offering coffee capsules in pre-packs in the course of trade with price information without also indicating the price per unit of quantity including VAT and other price components (basic price) in the immediate vicinity of the final price in addition to the final price, if this is done as shown in Annexes K 3a and K 3b.

Furthermore, the plaintiff requested that the defendant be ordered to pay the plaintiff € 178.50 plus specified interest.

The Regional Court granted the claim as requested (LG Koblenz, MD 2018, 87). The defendant’s appeal against this was unsuccessful (OLG Koblenz, MD 2018, 532). With its appeal on points of law, which was allowed by the Court of Appeal and which the plaintiff requested be dismissed, the defendant is pursuing its motion to dismiss.

Reasons

I. The Court of Appeal, like the Regional Court before it, assumed that the plaintiff was entitled to the asserted claims for injunctive relief and compensation for warning costs. It stated that:

The provision of § 2 para. 1 sentence 1 PAngV, the violation of which the plaintiff, authorized to bring an action pursuant to § 8 para. 3 No. 2 UWG, is a market conduct regulation within the meaning of § 3a UWG, which the defendant violated by offering the coffee capsules without indicating a basic price.

The defendant offered the coffee capsules by weight. The capsules were pre-packaged and therefore had to be labeled by weight regardless of the perception of the market. This is supported in particular by the provision in Art. 3 para. 4 of Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers (Price Indication Directive – PAngRL) and the regulatory link between the Price Indication Ordinance and the Pre-packaging Ordinance. In any case, however, it is in line with consumer expectations that the coffee capsules are labeled by weight. The corresponding provisions of the pre-packaging regulation are in line with Regulation (EU) No. 1169/2011 on the provision of food information to consumers (Food Information Regulation – FIR). Point 1 lit. c of Annex IX to Art. 24 para. 3 FIR does not constitute an exception according to which no net quantity would have to be indicated in the present case. The corresponding exception relates to coffee as a foodstuff, not to coffee capsules. For the latter, point 4 of Annex IX to Art. 24 para. 3 LMIV is relevant, which in turn corresponds to the content of § 6 para. 4 FertigPackV in terms of content.

The exception according to § 9 para. 4 No. 2 PAngV is also not fulfilled. The coffee capsules were not a composite offer. The basic price indication is intended to provide consumers with an easier overview of the pricing. Consumers are concerned with the comparability of the prices of different coffee capsules, not with the prices for the capsule and its contents.

The infringement committed by the defendant is capable of appreciably harming the interests of consumers, other market participants and competitors. It would make it considerably more difficult for consumers to compare prices. Due to the not insignificant risk of imitation, the de minimis threshold was exceeded. In addition, the information to be provided pursuant to § 2 para. 1 sentence 1 PAngV are material within the meaning of Section 5a para. 4 UWG.

II. The defendant’s appeal against this assessment is unsuccessful. The Court of Appeal was right to assume that the defendant was obliged under § 2 para. 1 sentence 1 PAngV, the defendant was also obliged to indicate the basic price, i.e. the price per 100 grams or per kilogram of the coffee contained in the capsules, in the offer of the coffee capsules complained of. The infringement in this respect constitutes unfair conduct pursuant to Section 3a UWG and justifies the claims asserted by the plaintiff for injunctive relief and reimbursement of warning costs pursuant to Section 8 para. 1 sentence 1 case 2 and § 12 para. 1 sentence 2 UWG.

1. the assessment of the Court of Appeal that the plaintiff is entitled to sue as a competition association pursuant to Section 8 para. 3 No. 2 UWG as a competition association does not reveal any errors and is also not challenged by the appeal.

2. the provision in Section 2 para. 1 sentence 1 PAngV, according to which anyone who offers goods to consumers in pre-packages, open packages or as sales units without wrapping by weight, volume, length or area on a commercial or business basis or regularly in any other way must also indicate the price per unit of quantity, including VAT and other price components (basic price), in addition to the total price (§ 1 para. 1 sentence 1 PAngV) and the price per unit of measure including VAT and other price components (basic price) in the immediate vicinity of the total price, has its legal basis in EU law in the Price Indication Directive and in particular in Article 3 (1) sentence 1 of the Price Indication Directive, according to which the price per unit of measure (Article 2 (b) PAngD) must be indicated in addition to the sales price (Article 2 (a) PAngD) for products offered to consumers by traders. This provision is intended to provide consumers with better information and make it easier for them to compare prices, in accordance with Art. 1, second half-sentence and Recital 6 of the TPMD. It therefore constitutes a market conduct regulation in the interest of consumers within the meaning of Section 3a UWG (on Section 4 No. 11 UWG aF see BGH, judgment of March 7, 2013 – I ZR 30/12, GRUR 2013, 850 marginal no. 13 f. = WRP 2013, 1022 – Grundpreisangabe im Supermarkt; judgment of October 31, 2013 – I ZR 139/12, GRUR 2014, 576 marginal no. 19 f. = WRP 2014, 689 – 2 Flaschen GRATIS, in each case with further references).

3. the defendant violated § 2 para. 1 sentence 1 PAngV by failing to include the basic price for the coffee powder contained in the capsules in the offer complained of.

a) The Court of Appeal rightly assumed that the coffee powder offered by the defendant in coffee capsules must be offered by weight due to a statutory labeling obligation and that this also triggers the obligation to indicate the basic price pursuant to Section 2 para. 1 sentence 1 PAngV. Accordingly, the Court of Appeal’s consideration in the alternative that coffee capsules are offered by weight of the coffee they contain, irrespective of such a labeling obligation, is irrelevant.

aa) The coffee capsules offered are pre-packaged within the meaning of Section 2 para. 1 sentence 1 PAngV. The legal definition of pre-packaging within the meaning of this provision is set out in Section 42 para. 1 of the Act on the Marketing and Provision of Measuring Instruments on the Market, their Use and Calibration and on Prepackages (Mess- und Eichgesetz – MessEG; see Weidert in Harte/Henning, UWG, 4th edition, Section 2 PAngV para. 4), which came into force on January 1, 2015. Accordingly, pre-packages are packages of any kind into which products are packed in the absence of the buyer and which are closed in the absence of the buyer, whereby the quantity of the product contained therein cannot be changed without opening or noticeably changing the packaging.

bb) The defendant offered the coffee powder in the coffee capsules by weight within the meaning of § 2 para. 1 sentence 1 PAngV by weight. The Court of Appeal rightly assumed that if there is a special statutory labeling regulation for the indication of a prescribed sales unit and the sales units are to be labeled by weight, it does not matter whether the products in question are only sold by number.

(1) Insofar as there is a special statutory obligation to indicate the filling quantity by weight of a pre-packaged product within the meaning of Section 2 para. 1 sentence 1 PAngV, the goods are offered by weight within the meaning of this provision (see BR-Drucks. 1800/100, p. 23 f.) The obligation to indicate a basic price in accordance with this provision is linked to the obligation to indicate the weight, volume, length or area of the goods offered in a sales unit. The indication of the basic price, i.e. a price converted to an easily comparable size of the sales unit, is intended to enable the consumer to make a price comparison without difficulty in the interest of price clarity by enabling him to easily grasp the price-quantity ratio expressed in the basic price indication in a packaging-neutral manner (BGH, GRUR 2014, 576 para. 20 – 2 Flaschen GRATIS; Sosnitza in Ohly/Sosnitza, UWG, 7th ed, § Section 2 PAngV para. 3; Jacobi, WRP 2010, 1217, 1219 f.). Accordingly, the basic price must always be stated if an indication of the filling quantity of the goods offered in a sales unit must be provided. In particular, the obligation to indicate the basic price cannot be avoided by offering goods not according to the filling quantity but, for example, according to the number of units in the packaging, although the filling quantity of the packaging must be indicated in accordance with special statutory provisions (see Köhler in Köhler/Bornkamm/Feddersen, UWG, 37th edition, Section 2 PAngV para. 2; Ambs in Erbs/Kohlhaas, Strafrechtliche Nebengesetze, Lief. August 2018, Section 2 PAngV para. 12; Gelberg in Landmann/Rohmer, Gewerbeordnung, Lief. June 2018, Section 2 PAngV marginal no. 4).

(2) The complaint of the appeal that labeling regulations such as §§ 6 and 7 FertigPackV do not constitute a binding guideline for the interpretation of § 2 para. 1 PAngV is therefore not valid. Although such labeling regulations do not constitute interpretative material for § 2 para. 1 PAngV, they do, however, open up the scope of application of this provision insofar as they establish the obligation to indicate the filling quantity. For the obligation to indicate the basic price, it is then no longer important whether the specific offer actually complies with this labeling obligation.

cc) The Court of Appeal rightly assumed that the coffee powder offered in coffee capsules may only ever be offered as a foodstuff with an indication of the filling quantity by weight.

(1) However, the labeling provisions of Sections 6 and 7 FertigPackV, which the Court of Appeal considered to be applicable in this respect, are excluded from the scope of application of the Food Information Regulation on December 13, 2014 by the provision in Art. 9 para. 1 letter e and Art. 23 of the FIR. Although the Member States were able, in accordance with Art. 42 subpara. 1 FIR before 12 December 2011 to maintain national provisions on the indication of the net quantity for certain foods. However, the Commission’s approval required for this pursuant to Art. 42 subpara. 2 of the FIR, which must be notified to the Commission by 13 December 2014, the Federal Republic of Germany has, however, only notified the Commission of such national provisions for Section 6 FertigPackV with regard to paragraphs 4 and 5 (Federal Government notification of 1 December 2014, BAnz of 3 December 2014, Amtl. Teil, p. 1). This means that the labelling obligation for the scope of application of the Food Information Regulation, i.e. for foods, can no longer be based on the other provisions of the Prepackaging Regulation (Rathke in Zipfel/Rathke, Lebensmittelrecht, C 113, 161st Lief. July 2015, Art. 23 LMIV para. 4).

(2) However, the indication of the net quantity of the food is mandatory according to Art. 9 para. 1 letter e of the FIR. The details of the mandatory indication of the net quantity are regulated in Art. 23 FIR. For products other than liquids, Art. 23 para. 1 letter b FIR, the net quantity in units of mass must be indicated. Accordingly, the net quantity of coffee powder must always be indicated by weight.

(3) In the case in dispute, the defendant was not liable under Art. 23 para. 3 in conjunction with no. 1 lit. c of Annex IX of the FIR from the obligation to indicate the net quantity. According to this provision, the indication of the net quantity is not mandatory for foodstuffs which are normally marketed by number of units, provided that the number of units is easily visible from the outside and easy to count or is otherwise indicated on the label. The question of whether a food is “normally placed on the market by number” is assessed according to the perception of the average consumer (see Hagenmeyer, LMIV, 2nd ed., Art. 23 para. 10; Grube in Voit/Grube, LMIV, 2nd ed., Art. 23 para. 56; Zechmeister, ZLR 2014, 43, 55). The Court of Appeal rightly assumed that the provision in no. 1 lit. c of Annex IX of the FIR only concerns foodstuffs and thus, in the case in dispute, only the coffee powder, but not the coffee capsules. Unlike coffee capsules, coffee powder is not marketed in quantities.

(4) In the case in dispute, the provision of Art. 23 para. 3 in conjunction with No. 4 sentence 1 of Annex IX of the FIR is applicable. According to this provision, in cases where a pre-packaging consists of two or more individual packages which are not to be regarded as sales units, the net quantity must be indicated in such a way that the total net quantity and the total number of individual packages are indicated. The Court of Appeal rightly assumed that this provision covers the present case because the coffee capsules (individual packs) contained in the package (pre-packaging) were not offered individually and are therefore not to be regarded as sales units. The obligation to indicate the net quantity resulting from this provision has indeed been met in the case in dispute. The total filling weight and the total number of coffee capsules contained in a pack are indicated on the packs on offer. The related obligation under § 2 para. 1 sentence 1 PAngV to indicate the basic price.

b) The Court of Appeal assumed that the facts of Section 9 para. 4 no. 2 PAngV, according to which there is no obligation to indicate the basic price pursuant to § 2 para. 1 PAngV in the case of goods that contain different products that are not mixed or blended with each other was not fulfilled. What is different in this sense can only be decided on a case-by-case basis, taking into account the purpose of the basic price indication and the exemption provision. The purpose of the basic price indication is to provide consumers with an easy way to compare prices. The consumer is concerned with the comparability of the prices of different coffee capsules and not the prices for the capsule and its contents, which is why the coffee capsules are not a composite offer. This assessment stands up to legal scrutiny.

aa) The interpretation of Section 9 para. 4 No. 2 PAngV must take into account the purpose of the obligation to indicate the basic price by assuming that products are of different types and thus that this obligation does not apply if the price comparison is made difficult anyway by the combination of the products in a package and the indication of the basic price does not change this, but conversely the indication of a basic price could lead the consumer to draw false conclusions when assessing the priceworthiness of the offer (cf. Weidert in Harte/Henning aaO Section 9 PAngV para. 24; Sosnitza in Zipfel/Rathke aaO C 119, Lief. March 2018, Section 9 PAngV para. 10). Accordingly, the provision of Section 9 para. 4 no. 2 PAngV is not relevant in the case in dispute.

According to the findings of the Court of Appeal, it is important for the consumer to compare the price of different coffee capsules according to the basic price of the coffee powder they contain. Such a price comparison allows an assessment of the value for money of the offer, even if the price of the filled coffee capsule is made up of the price of the capsule and the price of the coffee powder it contains.

bb) The appeal complains in vain that the Court of Appeal failed to take into account the defendant’s submissions on the significance of the coffee capsule as a functional unit. It is also not apparent that the Court of Appeal, in its assessment, disregarded arguments of the defendant that were relevant to the decision, such as the significance of the design of the coffee capsules in question and their components for the functionality of the capsules.

4. the Court of Appeal correctly assumed that the infringement of Section 2 para. 1 sentence 1 PAngV committed by the defendant is capable of appreciably impairing the interests of consumers and competitors pursuant to Section 3a UWG.

a) Even if an infringement of a market conduct regulation consists of withholding material information from the consumer, this infringement is not automatically appreciable within the meaning of Section 3a UWG, but only if, depending on the circumstances, the consumer needs the withheld material information in order to make an informed decision and its withholding is likely to cause the consumer to make a transactional decision that he would not have made otherwise (BGH, judgment of 31 October 2018 – I. R. 73/17 – GRUR 2019, 82 para. 31 = WRP 2019, 68 – Jogging pants). October 2018 – I ZR 73/17, GRUR 2019, 82 marginal no. 31 = WRP 2019, 68 – Jogging pants). This applies in particular if the consumer is deprived of information that Union law classifies as essential. This applies a fortiori if the consumer is deprived of immaterial information.

b) However, the trader who asserts that the consumer – in deviation from the normal case – does not need essential information withheld from him for a purchase decision and that the withholding of this information cannot cause the consumer to make a different purchase decision, has a secondary burden of proof in this respect (BGH, GRUR 2019, 82 para. 32 – Jogging pants).

c) According to Art. 7 para. 5 of Directive 2005/29/EC (Section 5a (4) UWG), the information requirements laid down in Union law in relation to commercial communications, including advertising or marketing, referred to in the non-exhaustive list in Annex II, are deemed to be material. The list in Annex II only mentions the obligation to indicate the basic price when advertising by indicating prices (Art. 3 (4) of Directive 98/6/EC, Section 2 (1) sentence 2 PAngV), but not the obligation – at issue here – to indicate the basic price when offering goods (Art. 3 (1) of Directive 98/6/EC, Section 2 (1) sentence 1 PAngV). Nevertheless, according to Art. 7 para. 5 of Directive 2005/29/EC, not only the obligation to indicate the basic price when advertising by indicating prices, but also the obligation to indicate the basic price when offering goods is considered essential. This obligation is also an information requirement laid down in Union law in relation to commercial communications. As the list in Annex II is not exhaustive, the fact that this obligation is not explicitly mentioned in this list does not prevent it from being classified as essential.

d) Accordingly, the defendant bears the burden of proof that the consumer did not need the information withheld from him in the contested offer of the coffee capsules about the basic price of the coffee contained in the capsules for a purchase decision and that the withholding of this information could not cause the consumer to make a different purchase decision. The defendant has not made any factual submission in this direction. Accordingly, it can be assumed that the withholding of the basic price information was likely to significantly impair the interests of consumers within the meaning of Section 3a UWG. This made it considerably more difficult for consumers to compare prices (see BGH, judgment of June 28, 2012 – I ZR 110/11, GRUR 2013, 186 marginal no. 17 = WRP 2013, 182 – Traum-Kombi). The fact that the consumer was able to compare the unit price for the individual capsule is irrelevant in this respect. If – as in the case in dispute – there is an obligation to indicate the basic price of the coffee contained in the capsules, it can be assumed that the consumer has a legitimate interest in being able to compare prices based on the price in relation to the filling quantity.

III. Since the defendant has made extensive submissions on the question of the palpability of the infringement in question and no new factual submissions are to be expected in this respect, the case is ready for a final decision in the sense of the confirmation of the judgment contested by the appeal.

The decision on costs follows from section 97 para. 1 ZPO.

Koch Schaffert Kirchhoff Feddersen Schmaltz Previous instances:

Koblenz Regional Court, decision of 24.10.2017 – 4 HKO 4/17 –

OLG Koblenz, decision of 23.04.2018 – 9 U 1240/17 –

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