Marknadsföringslagen och dynamisk prissättning - Är prismarknadsföring i kombination med dynamisk prissättning förenligt med marknadsföringslagen?

Sammanfattning: Digitalisation has had a significant impact on the retail industry. Due to strong competition, price-conscious consumers and dynamic pricing (a pricing strategy in which prices varies several times throughout the day) prices in E-commerce are usually lower than prices in traditional commerce. Under these circumstances, price reductions (sales, clearance sales and finale sales) and price comparisons are crucial for a trader’s ability to compete. Even though the subject of price reductions and price comparisons and dynamic pricing was discussed in a number of judgements in 2019 and 2020, the legal position is not obvious. Thus, this paper aims to investigate the legal position and to discuss the legal position in relation to dynamic pricing. Sections 16–17 and 10 of the Swedish Marketing Act regulates under which conditions price reductions and price comparisons are allowed. For example, the prices during sales, clearance sales and final sales must be significantly lower than the trader’s normal prices for equivalent products. According to the Consumer Ombudsman and the above-mentioned judgements, average prices are not normal prices; normal prices are equivalent to prices that are normally applied by the trader and has been applied during a period of four weeks prior to the price reduction. According to the Consumer Ombudsman, normal prices cannot be established when dynamic pricing is applied by the trader. The Patent and Market Court and the Patent and Market Court of Appeal are of the same, only slightly modified, opinion. Thus, it is as good as impossible for traders to carry out price reductions and price comparisons (since price comparisons often are based on normal prices) if dynamic pricing is applied. Due to the legal position, traders must choose between the possibility to carry out price reductions and price comparisons and the possibility to apply dynamic pricing. Is that adequate, or should the subject be regulated in another way? In light of the above-mentioned judgements, there may be a risk of a situation where big e-commerce traders disregard the legal situation, potentially entailing distorted competition and an increase in misleading marketing measures. Furthermore, it could be argued that there is a discrepancy between the Swedish legal position and the EU legislation which Swedish market law is based upon. In conclusion, the legal position cannot be considered appropriate or easily accessible. Moreover, it may aggravate the adoption and interpretation of EU legislation. In my opinion, it should therefore be possible to apply dynamic pricing as well as carry out price reductions and price comparisons provided that there is a clear and realistic legal framework, for example an obligation for the trader to provide information about the lowest price applied during a period of 30 days prior to the marketing measure.