LIdl – Court Ruling (Germany, 2025)

The controller is Lidl, the discount food retailer. Lidl offers consumers a loyalty program, "Lidl Plus". Via Lidl Plus, registered users receive personalised product information and offers, also from third-party providers. Customers can register via the Lidl app and create a "Lidl Plus account". The terms and conditions for registering, which customers have to accept, stated that "Participation in Lidl Plus is free of charge." It also stated that the app collects users’ data in order to send them personalised offers and promotions and described in more detail which data is processed. Lidl also processed the data to optimise the Lidl Plus program. In January 2025, the Federal Consumer Association (Verbraucherzentrale Bundesverbands) (plaintiff) filed a case against Lidl before the court of first instance (Stuttgart Higher Regional Court-OLG Stuttgart) on the grounds that it breached its obligation to indicate the total price of the service which applies to distance selling contracts, in accordance with the provisions of the national Civil Code (Articles 312 et seq. BGB) in conjunction with the national Introductory Act on Civil Codes (Article 246a Section 1(1)(5) EGBGB). The plaintiff claimed that according to Article 312d(1) BGB(1) In the case of contracts concluded outside of business premises and in the case of distance contracts, the entrepreneur is obliged to inform the consumer in accordance with Article 246a of the Introductory Act to the Civil Code. The information provided by the entrepreneur in fulfilment of this obligation shall become the content of the contract, unless the contracting parties have expressly agreed otherwise. in conjunction with Article 246a Section 1(1)(5) EGBGBPursuant to § 312d (1) of the Civil Code, the entrepreneur is obliged to provide the consumer with the following information: 5. the total price of the goods or services, including all taxes and duties, or in cases where the price cannot reasonably be calculated in advance due to the nature of the goods or services, the type of price calculation;, Lidl was obliged to provide information about the total price of the service. Lidl infringed these provisions by stating in the conditions of participation that participation was free of charge and by not stating that consumers must provide a fee in the form of personal data. The provision of personal data was the price for using the app. According to the plaintiff, a price does not necessarily have to be paid in a monetary amount. The plaintiff requested that Lidl was ordered to refrain from offering the conclusion of a contract in connection with the app "Lidl Plus" under these terms and to be obliged to inform consumers of the total price. Lidl on the other hand, claimed that it is was not obliged to inform customers in this case because the exception of Article 312(1a) BGB applied, according to which the above mentioned obligation does not apply if the trader processes the personal data provided by the consumer exclusively in order to meet his obligation to perform or to comply with his legal requirements. In this case the purpose was the provision of personalised information. In any case, according to Lidl, even if Article 246a Section 1(1)(5) EGBGB was relevant, information on the total price would not be required, as this obligation only covers situations where there is a payment in money, but not the provision of personal data. The court assessed the plaintiffs allegations regarding LIdl's conduct from a consumer and competition law perspective. In particular it assessed the claims that Lidl did not provide the legally required information about the total price and that it incorrectly stated that participation was free of charge for the consumer. The court found no violations and decided to dismiss the case. Consumer protection law First the court asserted that Article 312d(1) BGB in conjunction with Article 246a Section 1(1)(5) EGBGB on distance selling contracts constituted consumer protection provisions within the meaning of the national Law on injunctions for consumer rights and other violations (Section 2(1) sentence 1 UKIaG). Second, the court held that what is to be understood by the "price" for the provider of services according to Article 246a Section 1(1)(5) EGBGB must be determined in accordance with the requirements of European consumer protection laws. Article 312d(1) BGB in conjunction with Article 246a Section 1(1)(5) EGBGB, constitute national implementations of Article 6(1)(e) of the Consumer Rights Directive (Directive 2011/83/EU) and Article 2(7) of the Directive on certain aspects of contracts for the supply of digital content and digital services (Directive 2019/770/EU). The concept of "price" in both Directives is only to be understood as the remuneration in money or a digital representation of a value. The court held that, the provision of personal data by the consumer is not covered by this definition. The court further pointed out that, in contrast, the protection of the consumer, who should be clearly and unambiguously be made aware of the implications of their consent to the provision of their personal data, is guaranteed by the requirements for informing the data subject in accordance with Article 13 and Article 14 GDPR. There are no indications that the legislator intended to extend the existing data protection information obligations with the provision in Article 6(1)(e) of the Consumer Rights Directive on the indication of the total price. Therefore, since the consumer did not have to pay a price or other costs, the fact that Lidl described its services as free of charge was not objectionable according to Article 246a Section 1(1)(5) EGBGB. The court found that the plaintiff was not entitled to the asserted a claim for injunctive relief pursuant to Section 2(1) UKIaG because Lidl did not violate any of the consumer protection laws relevant to the decision here. Competition law The court held that a claim for injunctive relief did not arise from the violation of a prohibition under competition law either, since Lidl did not incorrectly state that participation was free of charge for the consumer, pursuant to the national Act against Unfair Competition (Section 3(1) UWG in conjunction with Sections 5, 5a UWG). The court mentioned that the Guidance on the interpretation and application of Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market states that it can be considered a misleading practice if products are presented as "free" in the online sector, but personal data is collected from users without adequately explaining to the consumer how this data and user-generated content is used.Products presented as ‘free’ are especially common in the online sector. However, many such services collect personal data of users such as their identity and email address. Importantly, the UCPD covers all commercial practices concerning ‘free’ products and does not require payment with money as a condition for its application. Data-driven practices involve an interplay between EU data protection legislation and the UCPD. There is an increasing awareness of the economic value of information related to consumers’ preferences, personal data and other user-generated content. The marketing of such products as ‘free’ without adequately explaining to consumers how their preferences, personal data and user- generated content are going to be used could be considered a misleading practice in addition to possible breaches of data protection legislation. (page 68) However, in this case Lidl explained the collection and use of personal data in the terms of use in an appropriate manner. Since no costs within the meaning of Article 246a Section 1(1)(5) EGBGB incurred for the consumers, the participation was free of charge. By describing it this way Lidl did not conceal the fact that the consumer must provide personal data and did not in any way deceived consumers. According to the court, anyone reading the terms and conditions would also be informed in detail about which data is collected and processed. Data protection law The plaintiff did not claim that information obligations under the GDPR had been violated and this was not apparent from its statement of claim, which is why the court decided not to examine these provisions.