The EU prior price rule explained: Article 6a and the 30-day lowest price

What Article 6a says

Directive (EU) 2019/2161 of 27 November 2019 amended four EU consumer laws, including Directive 98/6/EC on price indication ¹. It inserted a new Article 6a ¹. Member States had to adopt and publish the national rules by 28 November 2021 and apply them from 28 May 2022 ¹.

• Any announcement of a price reduction must indicate the prior price applied by the trader for a set period before the reduction ¹.
• The prior price is the lowest price the trader applied during a period not shorter than 30 days before the reduction ¹.
• Member States may set different rules for goods liable to deteriorate or expire rapidly ¹.
• For products on the market for less than 30 days, Member States may allow a shorter period ¹.
• Where a reduction is increased step by step, Member States may let the prior price be the price before the first reduction ¹.

What the Commission guidance adds

The European Commission published guidance on Article 6a in the Official Journal on 29 December 2021 ². It says the rule covers statements that a seller has cut its price, such as percentage discounts and now and was price pairs. It does not cover general claims such as best prices, which fall under the Unfair Commercial Practices Directive ².

The guidance says the lowest price in the 30 days includes any earlier reduced price in that period ². Traders may use a longer reference period or add other reference prices if they explain them clearly ².

Standing loyalty schemes and individual personalised discounts fall outside Article 6a, per the guidance. Codes or member offers open to many or most customers fall inside it ². Seasonal clothing does not count as goods that expire rapidly ². For new arrivals, Member States may shorten the period but cannot exempt the goods entirely ². The progressive reduction option applies only to one campaign without interruption ².

The Court of Justice ruling of 26 September 2024

In Case C-330/23, a German consumer association took a supermarket chain to court over discount labels, and the Landgericht Düsseldorf asked the Court of Justice how Article 6a applies ³. The Eighth Chamber ruled on 26 September 2024 ³.

The Court held that a price reduction announced as a percentage must be determined on the basis of the prior price within the meaning of Article 6a(2) ³. It said the reduced selling price cannot be the same as the prior price or higher than it ³.

Penalties

The amended Directive 98/6/EC requires Member States to set penalties for breaches and to take into account criteria such as the nature, gravity, scale and duration of the infringement ¹. Member States had to notify the Commission of these rules by 28 November 2021 ¹.

For other consumer laws amended by the same directive, fines for widespread infringements must reach a maximum of at least 4% of the trader's annual turnover in the Member States concerned, or at least EUR 2 million where turnover data is not available ¹.

How the United States rule compares

The United States has no fixed 30-day test at federal level. The Federal Trade Commission's Guides Against Deceptive Pricing, at 16 CFR 233.1, say a former price is a fair basis for comparison when it is the actual, bona fide price at which the article was offered to the public on a regular basis ⁴.

The guide says the price should have been openly and actively offered for a reasonably substantial period in the regular course of business, in good faith ⁴. It names as fictitious a price never actually offered or a price from the remote past used without disclosure ⁴. The guide dates from 8 November 1967 ⁴.

Why archived captures matter here

Proving the lowest price over 30 days needs a record of past prices ^1,2. A dated capture of a product page shows what one page displayed at one moment. It does not by itself show every price the trader applied during the period, which is what the rule measures ^1,2.