When advertising goods in deposit containers, the deposit amount must be indicated separately

Facts:
The plaintiff is an association that monitors compliance with competition law in the interests of its members. The defendant sells foodstuffs. In a leaflet, it advertised, among other things, beverages in deposit bottles and yogurt in deposit jars. The deposit amount was not included in the stated prices, but was shown with the addition "plus ... € deposit". The plaintiff sees this as a violation of the Price Indication Ordinance and is suing the defendant for injunctive relief.

Course of proceedings to date:
The Regional Court upheld the action. On appeal by the defendant, the Court of Appeal dismissed the action. In the appeal allowed by the Court of Appeal, the plaintiff is seeking to have the judgment of the Regional Court restored.

By order of July 29, 2021, the Federal Court of Justice suspended the proceedings and referred a question to the Court of Justice of the European Union for a preliminary ruling, in particular on the interpretation of Directive 98/6/EC (Price Indication Directive) (see Press Release No. 148/21 of July 29, 2021). The Court of Justice of the European Union answered this question in its judgment of June 29, 2023 (C-543/21).

Decision of the Federal Court of Justice:
The Federal Court of Justice dismissed the plaintiff's appeal. The Court of Appeal correctly assumed that the deposit amount must be shown separately. Who - like the defendant - advertises as a supplier of goods to consumers by stating prices, has to state the total price according to § 1 para. 1 sentence 1 PAngV aF (§ 3 para. 1, § 2 No. 3 PAngV nF). However, the total price does not include the deposit amount to be paid when purchasing goods in deposit containers. The Price Indication Regulation transposes the Price Indication Directive into German law and must therefore be interpreted in conformity with the Directive. According to the preliminary ruling of the Court of Justice of the European Union, the term "selling price" in Article 2(a) of the Price Indication Directive, which corresponds to the term "total price", does not include the deposit amount. This must therefore be indicated in addition to the selling price or the total price. The corresponding provision in Section 1 (4) PAngV old (Section 7 sentence 1 PAngV new) expressly clarifies this in accordance with EU law. The separate indication of the sales price and the deposit amount enables consumers to better assess the prices of goods and to compare them more easily.