The competition association had wanted to oblige the defendants to state the total price including the deposit when advertising beverages with a deposit. The Cologne Regional Court dismissed the claims in two parallel proceedings. The plaintiff’s appeal against this was rejected by the 6th Civil Senate of the Cologne Higher Regional Court in a ruling dated March 6, 2020. The plaintiff was of the opinion that the defendants were obliged to state a total price including the deposit when advertising drinks. Insofar as Section 1 (4) of the Price Indication Ordinance (PAngV) does not require a total amount to be formed, the provision may no longer be applied due to a lack of basis in European Union law. This follows from Art. 7 para. 4 lit c) and Art. 3 para. 5 of the European Directive on Unfair Commercial Practices.
The 6th Civil Senate of the Higher Regional Court of Cologne did not follow this view. According to German law – Section 1 (4) PAngV – the inclusion of the deposit in the total price is inadmissible. The fact that the defendants had complied with German law could not give rise to a claim for injunctive relief under unfair competition law. It is true that the German provision has no basis in European Union law. However, it is applicable German law and must therefore be applied by the court, particularly with regard to the principle of the rule of law laid down in Article 20 (3) of the German Basic Law. Despite the concerns raised, the German legislator has still not seen any reason to amend the Price Indication Ordinance. The court is bound by the applicable law and is not authorized to ignore an existing provision. In particular, it cannot change its role from that of a norm user to that of a norm-setting authority. EU directives are not directly applicable in the EU member states and an interpretation of Section 1 (4) PAngV in line with the directive is not possible.
In addition, the Senate is also of the opinion that the provision of Section 1 (IV) of the PAngV is outside the fully harmonized regulatory scope of the European Directive on Unfair Commercial Practices and did not have to be deleted by the German legislator. The provision pursues the environmental policy purpose of avoiding disadvantages for reusable containers compared to disposable containers when quoting prices, because otherwise reusable bottles would appear more expensive. The Senate also emphasizes that price labelling in accordance with Section 1 (4) PAngV safeguards the interests of consumers and does not noticeably impair them. The separate labeling of the product price and the deposit to be paid is not only customary in the market, but also highly transparent. It contributes significantly to avoiding calculation errors when determining the relevant price of goods without a deposit. The view of some regional courts that Section 1 (4) PAngV should no longer be applied cannot be followed. There is no sound justification for the demand to ignore applicable law (press release of the Higher Regional Court of Cologne on judgment of March 6, 2020, Ref.: 6 U 89/19).
