Facts
The Trade and Commerce Police of the Canton of Lucerne granted the company Orientteppich Z. from Zurich a permit for a voluntary public auction of Oriental and Persian carpets on January 14, 1989 on December 19, 1988. The company Z. published an advertisement for this auction in newspaper inserts and a flyer, which listed not only the previous retail prices but also the significantly lower starting bid prices.
X., who was responsible for the advertisements, was fined CHF 250.- by the District Governor of the City of Lucerne for violation of Art. 4 AV and Art. 13 PBV. The High Court of the Canton of Lucerne acquitted X. of the charge of violation of Art. 13 PBV, but convicted him of violation of Art. 4 and 25 para. 1 lit. a AV in conjunction with Art. 25 para. 1 UWG, and imposed a fine of CHF 200.-.
Both the Public Prosecutor's Office of the Canton of Lucerne and X. filed a nullity appeal against the decision of the High Court.
Considerations
The Federal Supreme Court holds that the indication of starting bid prices in the advertising for an auction does not violate Art. 13 para. 1 PBV, as the actual prices to be paid are naturally not known in advance in the case of auctions. However, the juxtaposition of the significantly lower starting bid prices with the previous retail prices constitutes a misleading price comparison pursuant to Art. 16 para. 2 lit. a PBV.
Furthermore, the Federal Supreme Court concludes that the incriminated auction advertisement led the average uninformed reader to believe that…