This reference for a preliminary ruling, which concerned the Unfair Commercial Practices Directive (Directive 2005/29), was made in a dispute between two newspaper publishers, Mediaprint and Österreich’-Zeitungsverlag, concerning the lawfulness or otherwise of a sale with bonuses organised by the latter.
From 25 November to 6 December 2007, the daily newspaper “Österreich’, belonged to the defendant in the main proceedings, organised the election of the “footballer of the year” and invited the public to join in that competition, by internet or by means of a voting slip appearing in the newspaper. Participation in that competition carried the prize of dinner with the footballer chosen.
By its first question, the referring court asked, in essence, whether the Directive must be interpreted as precluding a national provision which laid down a general prohibition on sales with bonuses and was designed not only to protect consumers but also pursued other objectives, such as, for example, the safeguarding of pluralism of the press and protection of the weakest competitors.
The Grand Chamber of the Court first of all reiterated that promotional campaigns, such as those at issue in the main proceedings, which enabled consumers to take part free of charge in a lottery subject to their purchasing a certain quantity of goods or services, clearly formed part of an operator’s commercial strategy and related directly to the promotion thereof and its sales development. It followed that they constituted commercial practices within the meaning of Art. 2(d) of the Directive and, consequently, came within its scope (Case C-304/08 Plus Warenhandelsgesellschaft ).
The Court furthermore held that the Unfair Commercial Practices Directive was characterised by a particularly wide scope ratione materiae which extended to any commercial practice directly connected with the promotion, sale or supply of a product to consumers.
Citing recital 6 in the preamble to the Directive, the Court stated that only national legislation relating to unfair commercial practices which harmed “only” competitors” economic interests or which related to a transaction between traders was thus excluded from that scope.
The Court held that that was clearly not the case with the national provision at issue in the main proceedings.
Since Directive 2005/29 fully harmonised the rules relating to unfair business-to-consumer commercial practices, Member States might not adopt stricter rules than those provided for in the Directive, even in order to achieve a higher level of consumer protection (Case C-304/08 Plus Warenhandelsgesellschaft ).
The Court held that in accordance with Art. 5(2) of the Directive, a commercial practice was unfair if it was contrary to the requirements of professional diligence and materially distorts, or was likely materially to distort, the economic behaviour of the average consumer with regard to the product.
The Court found that Directive 2005/29 precluded a prohibition, such as that provided for by the national legislation at issue in the main proceedings, on sales with bonuses and was not only designed to protect consumers but also pursued other objectives.
By its second question, the national court asked, in the event of an affirmative answer to the first question, whether sales with bonuses must be regarded as unfair commercial practices within the meaning of Art. 5(2) of the Directive, merely on the ground that the possibility of gain represented, for at least part of the public concerned, the deciding factor which caused it to buy the main product.
The Court held that the fact that, for at least part of the public concerned, the possibility of participating in a competition represented the factor which determined the purchase of a newspaper constituted one of the factors which the national court might take into account when making such an assessment. That fact might lead the national court to consider that the commercial practice in question materially distorted or was likely materially to distort the economic behaviour of the consumer, within the meaning of Art. 5(2)(b) of the Directive.
However, according to the Court, that fact did not in any way lead in itself to the conclusion that a sale with a bonus constituted an unfair commercial practice within the meaning of the Directive. For that purpose, it must also be verified whether the practice in question was contrary to the requirements of professional diligence within the meaning of Art. 5(2)(a) of the Directive.
The Court therefore concluded that the possibility of participating in a prize competition, linked to the purchase of a newspaper, did not constitute an unfair commercial practice within the meaning of Art. 5(2) of Directive 2005/29, simply on the ground that, for at least some of the consumers concerned, that possibility of participating in a competition represented the factor which determined them to buy that newspaper.