In a recent case, the European Court of Justice (“ECJ”) had to consider whether the ‘selling price’ under EU consumer protection rules should include the amount of the deposit paid by consumers when purchasing products in returnable containers (Case C-543/21 of 29 June 2023). This issue arose from an advertising campaign for drinks and yoghurts in glass bottles and jars, where the deposit for the returnable containers was indicated as “price plus: EUR … deposit.” An action for cessation was brought before the German courts, which led to the proceedings before the ECJ.
The question put before the ECJ was whether the “selling price,” i.e. the final price for a unit or a given quantity of a product, needs to include the deposit payable by the consumer for returnable containers. In order to answer this question, the ECJ considered the concept of the selling price as established in the Citroën Commerce case of 7 July 2016. According to this case, the (final) selling price must necessarily include the unavoidable and foreseeable components of the price.
The ECJ ultimately decided that, even when a product in a returnable container cannot be purchased without that container and, as a result, the amount of the deposit constitutes an ‘inevitable component of the selling price’, the return of the container confers on that consumer the right to reimbursement of the deposit. Thus, in so far as the consumer is entitled to reimbursement for the deposit paid, that amount is not necessarily payable by the consumer and, consequently, cannot be regarded as being a final selling price.
This finding was moreover corroborated by the objective to improve consumer information and to facilitate the comparison of selling prices of products. Given that some products are subject to a deposit while others are not, and that deposits of different amounts may apply depending on the type of container, including the amount of deposit in the selling price entails a risk for consumers making inaccurate comparisons. By contrast, indicating the amount of the deposit separately from the selling price will enable consumers to evaluate and compare prices accurately, while at the same time enabling them to determine the total amount payable on the date of purchase.
