Aldi Süd had repeatedly sold coffees of its own brands below production costs. Tchibo had filed a lawsuit against this, as Tchibo is convinced that this behaviour is unlawful and harms fair competition and thus ultimately also consumers. In the first instance, the Düsseldorf Regional Court had dismissed the lawsuit. The appeal to the Düsseldorf Higher Regional Court was not granted.

In its written reasons for the judgment, however, the OLG now recognizes an unresolved legal question, namely whether the sale of food below production costs is to be legally equated with the sale of food below cost price.

The Higher Regional Court therefore expressly allows the appeal to the Federal Court of Justice. "This typically only happens in rare cases, which underlines the extraordinary importance of this issue for the further development of the law," emphasises Arnd Liedtke, company spokesman for Tchibo GmbH. "We are now going into revision in order to create clarity for the benefit of consumers on this issue, which is crucial for fair competition," Liedtke continues.

 To classify:
"Selling at a loss below cost prices is prohibited under current law. This must also apply to sales at a loss below production costs, because both harm competition and thus consumers in the long term," says Liedtke, describing the position of Tchibo. "From the point of view of competition and consumers, it can make no difference whether the coffee is purchased as a finished product and resold or purchased as green coffee, roasted in the group and then resold. Therefore, all loss-making sales should be treated equally."