Just a few days ago, the Court of Justice of the European Union (CJEU) issued its decision in the case of Consumer Association of Baden-Württemberg v Aldi Süd Dienstleistungs SE & Co. OHG, which clearly sets out the way in which traders can advertise discounts. It is now settled that a discount on the price of goods which is announced by a trader as a percentage (or in the form of an advertising message designed to emphasise the advantageous nature of the price offer) must be determined on the basis of the previous lowest price over the last 30 days. 

Why is the decision important?

In particular, the CJEU criticised Aldi Süd for increasing the price shortly before the discount event, which made it possible to advertise a higher discount. The EU directive does not specify exactly how and on what the discount is to be calculated, and if this is to be applied to the Czech Republic, neither does Czech law. Therefore, this judgment is important for all EU countries, including the Czech market and the Czech legal environment. 

Although the CJEU's decisions are not directly binding within the Czech legal system (i.e. not even for Czech courts), in our opinion, the judgment can be considered as a certain indication of how Czech administrative authorities will decide when assessing discount promotions by traders and how courts will decide in potential court disputes (in particular on administrative actions on the issue of Section 12a of the Consumer Protection Act). 

What will the decision bring?

We believe that, in view of the rules for determining discounts and their interpretation currently adopted by the CJEU, it is no longer realistic to expect that a different method of calculating discounts would hold up before the CMA or the Czech courts. At the same time, it is worth noting that the CTIA has previously been inclined towards this conclusion, which has now been presented by the CJEU, when assessing discount promotions by traders. 

Discount promotions will therefore have to be adapted to the CJEU's judgment. Although we have some reservations about its conclusions (as we believe that in certain circumstances discounts could be quoted even on the normal price, which could be, for example, the average price of the trader over a certain period), discounts will now probably be more transparent and the competitive environment could also be straightened out by the fact that traders (at least in theory) should communicate discounts to customers in the same way.

As a law firm with extensive experience in this area, we can help you ensure that your discounting campaigns comply with these rules. We offer expert legal support to protect your business from the associated legal risks and penalties. Do not hesitate to contact us for a consultation.

Mgr. Martina Petlachová, lawyer

Mgr. Marek Ždímal, lawyer

Mgr. Jaroslav Hroza, partner