Legal Context
There has long existed an EU Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers. Article 6a of this Directive, introduced in 2019, requires that price reduction announcements include the prior price applied by the advertiser, which must correspond to the lowest price applied during at least the 30 days preceding the announcement. The Court of Justice of the European Union recently provided an interesting clarification on the interpretation of this directive.
Case Summary
Aldi had published promotional flyers featuring price announcements for bananas and pineapples. These announcements were presented as follows:
In the center of the white box, Aldi highlighted the new price applied (€1.29 in the first announcement and €1.49 in the second) with the previous price crossed out in the lower right corner (€1.69 in both cases). Above this white box, the percentage discount, based on the crossed-out price, was indicated in one announcement (-23%), and “price highlight” (“Preis-Highlight”) was mentioned in the other. Below, in smaller characters, the lowest price applied during the 30 days preceding the announcement was indicated (€1.29 in the first ad and €1.39 in the second). The lowest price was, in one case, identical to the announced discounted price and, in the other case, lower than the announced "price highlight".
As the lowest price applied during the previous 30 days was mentioned in the announcement, Aldi considered itself to be in compliance with Article 6a of the Directive. Indeed, this article does not specify how this information must be communicated, nor does it prohibit mentioning the most recent price applied.
However, believing that this announcement could mislead consumers regarding the price reduction, a German consumer protection association brought the matter before the Regional Court of Düsseldorf. This court, uncertain about the interpretation of the Directive, referred preliminary questions to the Court of Justice of the European Union.
In its ruling of 26 September 2024, the Court of Justice of the European Union based its decision on the main objective of the Directive, which is to ensure a high level of consumer protection. While the Directive does not specify the exact modalities for communicating price reductions, such communications must be free from any ambiguity. Consequently, according to the Court, the article requires that any announced price reduction, whether in the form of a percentage or a statement highlighting a price advantage, be calculated based on the "prior price," meaning the lowest price applied during the 30 days preceding the announcement.
Application in Belgium
Article 6a of Directive 98/6/EC is transposed into Belgian law through Article VI.18 of the Code of Economic Law. Therefore, the Court of Justice of the European Union’s interpretation fully applies in Belgium. However, it is worth noting that a derogation exists in Belgian law for “goods liable to deteriorate or expire rapidly.” This derogation is permitted by Directive 98/6/EC and primarily applies to food products. As a result, it is not mandatory to indicate the lowest prior price applied during the past 30 days for these products in the event of a price reduction announcement. Hence, basing the price reduction announcement on a prior price applied for less than 30 days cannot automatically be considered unlawful.
Partner THALES – Commercial, IP & Food Law
Associate THALES – Commercial, IP & Food Law
