OLG Stuttgart on non-binding price recommendations – Judgment of March 6, 2025, Ref. 2 U 142/23
Misleading business practices violate the Act Against Unfair Competition (UWG) and competition law. Misrepresentation can also occur with non-binding price recommendations (UVP) if the price has not been seriously calculated. The OLG Stuttgart made this clear in its judgment of March 6, 2025 (Ref. 2 U 142/23).
Advertising is deemed unfair if it is likely to deceive the consumer about the essential characteristics of a product. According to the corporate law firm MTR Legal Rechtsanwälte, which advises, among other things, on competition law, such misrepresentation may relate, for example, to quality, price, or special price advantages through discounts.
A non-binding price indication (UVP) is important for consumers in order to assess the potential savings during a sales promotion. However, this is not possible if the UVP is not realistic. For this reason, the Baden-Württemberg Consumer Center filed a lawsuit against a retailer for misleading advertising.
Supposed bargain
The retailer had offered an exercise bike on its website at a price of around 300 euros, also indicating the manufacturer’s UVP of 649 euros. Thus, for the consumer, the fitness device from the retailer appeared to be a real bargain. If purchased, the consumer would save more than 50 percent compared to the UVP.
The catch: the UVP was not realistic and had never been demanded. Even a company associated with the manufacturer offered the exercise bike at an even lower price, consistently undercutting the alleged UVP. Therefore, the Baden-Württemberg Consumer Center filed for an injunction to stop the online advertising for the exercise bike.
UVP must serve as an actual point of reference
The OLG Stuttgart ruled in favor of the consumer advocates. It decided that the advertisement using the non-binding price recommendation in this case was misleading and thus anti-competitive. The court found that a UVP is only permissible if it has been seriously calculated by the manufacturer and serves as an appropriate market-based reference point. However, if the manufacturer or an affiliated company regularly offers the product at a significantly lower price, the UVP loses its function as a credible price recommendation.
Consumers deceived
In the underlying case, the company associated with the manufacturer permanently undercut the non-binding price recommendation. This shows that the manufacturer itself did not regard the UVP as a market-based reference. It merely served to suggest a significant discount to consumers. Therefore, this constitutes a violation of the Act Against Unfair Competition (UWG). The OLG Stuttgart thus upheld the claim for injunctive relief.
Unfair competition occurs when a company violates the rules of fair competition through its conduct. The Act Against Unfair Competition protects competitors, consumers, and other market participants from unfair business practices. Such conduct particularly applies when an advertisement is misleading.
Consequences of unfair competition
The ruling of the OLG Stuttgart makes it clear that companies must pay careful attention to the price information used in their advertisements. In particular, non-binding price recommendations should only be stated if they have actually been issued by the manufacturer and serve as a realistic orientation for the market. Otherwise, there is a risk that the advertising will be deemed misleading and thus anti-competitive.
Companies should also keep in mind that they are responsible for the content of their advertising, even if it is provided or influenced by third parties. Close personal or economic ties with other companies can result in the conduct of those companies being attributed to the advertising company.
In the event of violations of the Act Against Unfair Competition, companies must expect legal consequences. This may include warnings from competitors or authorized associations. Injunctive relief and claims for damages may also follow. Additionally, fines may be imposed.
MTR Legal Rechtsanwälte advises on issues relating to unfair competition and other aspects of competition law.
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