In its judgment of 29 September 2026 (case no. 6 UKl 2/25), the Higher Regional Court (OLG) Brandenburg dismissed the action brought by the Federation of German Consumer Organisations (vzbv) against the Lidl Plus app. Nevertheless, the decision is no reason for retailers to sound the all-clear.
That is because the court did not decide whether exclusive app discounts impermissibly disadvantage consumers on account of their age or a disability. The action failed at the outset on subject-matter jurisdiction.
The real question therefore remains open: Under what conditions may retailers tie price advantages to an app, a customer account or the provision of personal data?
Depending on how it is structured, such a discount model touches on several areas of law at once – from the General Equal Treatment Act (AGG) through the Act against Unfair Competition (UWG) and price indication law to data protection and accessibility.
What was the case about?
The vzbv wanted Lidl to be prohibited from granting certain discounts exclusively to users of the Lidl Plus app.
In the association’s view, this can disadvantage older people and people with disabilities in particular if they do not own a smartphone or cannot use a corresponding app, or can do so only to a limited extent.
The vzbv therefore based its action on the General Equal Treatment Act (AGG).
Why did the action fail?
The decision was not made on the merits.
Association actions under the Injunctions Act (UKlaG) do in principle go before the Higher Regional Court at first instance. A prerequisite, however, is that the action is based on a consumer protection law within the meaning of that Act.
In the view of the OLG Brandenburg, the provisions of the AGG relied on by the vzbv are not among them. The Regional Court (LG) would therefore have had jurisdiction.
The central question – whether a discount granted exclusively via an app can amount to an impermissible disadvantage – was therefore not answered by the OLG Brandenburg in its judgment of 29 September 2026 (case no. 6 UKl 2/25).
Comparable proceedings against Netto and Penny had previously also been unsuccessful. Those cases lacked, in particular, sufficient evidence of the alleged disadvantage to certain consumer groups.
Lidl Plus is already keeping the courts busy on another legal front as well: in 2025, the OLG Stuttgart had to decide whether the app may be advertised as “free” even though users provide personal data. The court considered the advertising permissible in the specific case. These proceedings, too, are now pending before the Federal Court of Justice (BGH).
Five legal risk areas for app discounts
1. Protection against discrimination under the AGG
Shopping in a supermarket can, as a mass transaction within the meaning of § 19 para. 1 AGG, be subject to the prohibition of discrimination.
Not only direct discrimination is impermissible. A rule that is neutral at first glance can also be problematic if it in fact affects certain groups more severely. This concerns in particular indirect discrimination under § 3 para. 2 AGG.
A discount accessible exclusively via a smartphone app can therefore become legally relevant if people are in effect placed at a disadvantage as a result.
Such unequal treatment is not automatically impermissible, however. It can be justified if there is an objective reason for it within the meaning of § 20 AGG.
Particularly important: the vzbv’s procedural defeat does not eliminate the individual AGG risk. Affected consumers can assert their own claims independently of an association action. § 21 AGG provides in particular for claims for removal and injunctive relief and, under certain conditions, damages and compensation.
2. Advertising with “free” apps
Advertising a loyalty programme as “free” can also raise questions under competition law.
This can become problematic in particular where users pay no money but do provide personal data, and the economic significance of this use of data is not made sufficiently transparent in the advertising.
Whether such advertising is misleading depends heavily on the specific design and on the information given to users.
In the specific case, the OLG Stuttgart found no misleading conduct on the part of Lidl Plus. The question is, however, not yet conclusively settled, since these proceedings, too, are pending before the BGH.
3. Price indications and the 30-day rule
Price indication law also plays a central role in app discounts.
Where a price reduction is advertised, for example, with a crossed-out price or a percentage discount, § 11 of the Price Indication Ordinance (PAngV) must be observed. Under that provision, the lowest price that the retailer charged within the last 30 days before the price reduction was applied must in principle be stated.
The Court of Justice of the European Union (CJEU) has also clarified that an advertised price reduction must relate to this reference price (CJEU, judgment of 26 September 2024 – C-330/23, Aldi Süd).
Particularly with frequently changing app offers, personalised discounts and short-term special promotions, this creates considerable sources of error.
4. Personal data as consideration
Loyalty programmes also regularly operate in the area of tension between contract law and data protection.
Where a consumer provides personal data as consideration for digital content or digital services, the provisions on contracts for digital products under § 327 para. 3 of the German Civil Code (BGB) may apply.
In addition, the GDPR remains fully applicable.
The so-called coupling prohibition in Art. 7 para. 4 GDPR deserves particular attention. Consent must in principle be given freely. Whether consent can validly be linked to a discount or another benefit therefore depends on the specific design of the programme.
Discount, registration, data use and consent should be cleanly separated from one another in legal terms or, at the very least, be linked in a way that is comprehensible and legally robust.
5. Accessibility under the BFSG
Since 28 June 2025, the requirements of the Accessibility Strengthening Act have applied to numerous products and services.
Loyalty apps can also be affected by this. What matters in particular is which functions the app performs and whether services are offered through it in electronic commerce, or contracts are initiated or concluded.
Whether a specific app falls within the BFSG must therefore be examined on a case-by-case basis.
For microenterprises, however, there are statutory exemptions in respect of services.
Conclusion
The current Lidl proceedings show one thing above all: a court defeat for a consumer association does not automatically mean that the underlying business model is legally secure.
In the Brandenburg proceedings, the central question of a possible disadvantage caused by exclusive app discounts remains open. At the same time, loyalty programmes regularly affect several areas of law at once.
For retailers, an early review is therefore worthwhile.
Are you planning a discount or loyalty programme, or have you already received a cease-and-desist letter? We will show you which adjustments make legal sense and defend you in the event of a dispute.
