On 26 September 2024, the European Court of Justice (ECJ) handed down a judgment in which it ruled that special offers must be based on the lowest price offered during the previous 30 days.
The judgment was handed down in response to an application for a preliminary ruling requested by the Civil Division of Düsseldorf’s District Court in the context of an action brought by a German consumers’ association against Aldi Süd Dienstleistungs SE & Co. OHG (ALDI). The action arose as a result of the advertising leaflets that ALDI distributes in order to inform its customers about the different offers that it makes available during each week.
The leaflet for the week from 17 to 22 October 2022 advertised a “special offer” that related to a reduction in the price of bananas and pineapples. The new reduced price for each of these products was indicated alongside its picture, in a large font, in the centre of a white rectangle (€1.29 for bananas and €1.49 for pineapples). In the bottom corner of the white rectangle there was another price, crossed out and in a smaller font (€1.69 for both products). In addition, the bottom section of each rectangle contained the following text: “Latest sale price. Lowest price in the last 30 days”, going on to indicate what this lowest price was (€1.29 for bananas and €1.39 for pineapples).
In short, ALDI was announcing a discount on its products that reduced the price by 23% in the case of bananas and 11.8% in the case of pineapples. However, the true discount was lower, because the price on which the offer had been calculated (€1.69) was higher than the price at which the products had been sold during the previous month.
The consumers’ association brought an action against ALDI as a result of this offer, understanding that it represented a false reduction. The association indicated that under Article 6a of Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers, commercial offers must be calculated on the basis of the lowest price offered during the previous 30 days.
ALDI based its defence on the literal wording of Article 6a, which establishes that “any announcement of a price reduction shall indicate the prior price applied by the trader, and then goes on to define the prior price as the “lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction”. ALDI argued that its offers complied with the regulation cited, since it had informed consumers what the lowest price had been during the previous 30 days, even though it may not have applied the reduction on that base amount.
The consumers’ association believed that this strategy could be misleading, since the average consumer would understand that the offer resulted from a reduction in the usual sale price, when in fact they were being offered a false reduction.
The ECJ upheld the arguments of the German consumers’ association and ruled that if one were to accept the literal interpretation proposed by ALDI, one would be contradicting the actual aims of Article 6a, since this would allow consumers to be misled by announcements advertising reductions in price that were not real.
