Supreme Administrative Court refers the case concerning a price promise made by XXL to the Market Court

In 2014, the Consumer Ombudsman viewed the claims made by the sports equipment retailer, XXL, on the low prices of its products, combined with its promise related to price differences, as misleading for consumers. For example, only around half of the products subject to the price promise were being sold by other companies. With its marketing, XXL created an impression of lower prices which did not necessarily exist. The Consumer Ombudsman took XXL to the Market Court because the company refused to change its marketing in accordance with the demands made by the Consumer Ombudsman.

On 24 November 2015, the Market Court rejected the claim presented by the Consumer Ombudsman, ruling that the wording of the price promise made by XXL in its marketing had not been misleading for consumers. The Consumer Ombudsman appealed against the decision to the Supreme Administrative Court in 2016. The Supreme Administrative Court annulled the decision of the Market Court on 7 December 2017 and referred it back to the Market Court for further consideration.

According to the decision of the Supreme Administrative Court of 7 December 2017, which was based on the legal practice of the European Court, the Market Court did not take full account of the matters presented when evaluating the misleading nature of the defendant’s actions. The Market Court based its ruling on the wording used in the advertisement, whereas the Supreme Administrative Court adjudged that the decisive issue lay in evaluating the impression created for the average consumer by XXL’s advertising. In its decision, the Supreme Administrative Court proposed that XXL’s marketing claims be re-examined in the Market Court on the basis of the matters presented by the Supreme Administrative Court.