Case C-540/08

Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG

v

‘Österreich’-Zeitungsverlag GmbH

(Reference for a preliminary ruling from the Oberster Gerichtshof)

(Directive 2005/29/EC – Unfair commercial practices – National legislation laying down a prohibition in principle on commercial practices making the offer of bonuses to consumers subject to the purchase of goods or services)

Summary of the Judgment

1. Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29

(European Parliament and Council Directive 2005/29)

2. Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29

(European Parliament and Council Directive 2005/29, Art. 5(2)(a) and (b))

1. Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market must be interpreted as precluding a national provision that lays down a general prohibition of sales with bonuses and is not only designed to protect consumers but also pursues other objectives.

Directive 2005/29 carries out a complete harmonisation of the rules concerning unfair commercial practices of undertakings vis-à-vis consumers and establishes, in Annex I, an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) of that directive, are regarded as unfair in all circumstances. Consequently, as expressly stated in recital 17 in the preamble to the said Directive 2005/29, those commercial practices alone can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9 of the directive. Practices consisting in offering consumers bonuses associated with the purchase of products or services do not appear in Annex I to the directive. Therefore, they may not be prohibited in all circumstances, but may be prohibited only following a specific assessment allowing the unfairness of those practices to be established.

(see paras 27, 34-35, 41, operative part 1)

2. The opportunity of participating in a prize competition, linked to the purchase of a newspaper, does not constitute an unfair commercial practice within the meaning of Article 5(2) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market, simply on the ground that, for at least some of the consumers concerned, that chance of participating in a competition represents the factor that determines them to buy that newspaper.

(see para. 47, operative part 2)

JUDGMENT OF THE COURT (Grand Chamber)

9 November 2010 (*)

(Directive 2005/29/EC – Unfair commercial practices – National legislation laying down a prohibition in principle on commercial practices making the offer of bonuses to consumers subject to the purchase of goods or services)

In Case C-540/08,

REFERENCE for a preliminary ruling under Article 234 EC, from the Oberster Gerichtshof (Austria), made by decision of 18 November 2008, received at the Court on 4 December 2008, in the proceedings

Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG

v

‘Österreich’-Zeitungsverlag GmbH,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano (Rapporteur), J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot and A. Arabadjiev, Presidents of Chambers, E. Juhász, G. Arestis, A. Borg Barthet, P. Lindh and T. von Danwitz, Judges,

Advocate General: V. Trstenjak,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 19 January 2010,

after considering the observations submitted on behalf of:

– Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, by S. Korn and G. Korn, Rechtsanwälte,

– ‘Österreich’-Zeitungsverlag GmbH, by P. Zöchbauer, Rechtsanwalt, and W. Zekert, Geschäftsführer,

– the Austrian Government, by C. Pesendorfer and A. Posch, acting as Agents,

– the Belgian Government, by T. Materne, acting as Agent,

– the German Government, by M. Lumma, J. Möller, and S. Unzeitig, acting as Agents,

– the European Commission, by F. Erlbacher and W. Wils, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 March 2010,

gives the following

Judgment

1 The reference for a preliminary ruling concerns Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘the Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22, ‘the Directive’).

2 The reference was made in a dispute between two newspaper publishers, Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG (‘Mediaprint’) and ‘Österreich’-Zeitungsverlag GmbH, concerning the lawfulness or otherwise of a sale with bonuses organised by the defendant in the main proceedings.

Legal context

Union law

3 The sixth, eighth, ninth and seventeenth recitals of the Directive state:

‘(6) This Directive … approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers’ economic interests and thereby indirectly harm the economic interests of legitimate competitors. In line with the principle of proportionality, this Directive protects consumers from the consequences of such unfair commercial practices where they are material but recognises that in some cases the impact on consumers may be negligible. It neither covers nor affects the national laws on unfair commercial practices which harm only competitors’ economic interests or which relate to a transaction between traders, taking full account of the principle of subsidiarity, Member States will continue to be able to regulate such practices, in conformity with Community law, if they choose to do so. …

…

(8) This Directive directly protects consumer economic interests from unfair business-to-consumer commercial practices. …

(9) This Directive is without prejudice to individual actions brought by those who have been harmed by an unfair commercial practice. It is also without prejudice to Community and national rules on contract law, on intellectual property rights, on the health and safety aspects of products, on conditions of establishment and authorisation regimes, including those rules which, in conformity with Community law, relate to gambling activities, and to Community competition rules and the national provisions implementing them. The Member States will thus be able to retain or introduce restrictions and prohibitions of commercial practices on grounds of the protection of the health and safety of consumers in their territory wherever the trader is based, for example in relation to alcohol, tobacco or pharmaceuticals. …

…

(17) It is desirable that those commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. Annex I therefore contains the full list of all such practices. These are the only commercial practices which can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9. The list may only be modified by revision of the Directive.’

4 Article 1 of the Directive provides:

‘The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers’ economic interests.’

5 Article 2(d) of the Directive provides:

‘For the purposes of this Directive:

…

(d) “business-to-consumer commercial practices” (hereinafter also referred to as “commercial practices”) means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’.

6 According to Article 3 of the Directive:

‘(1) This Directive shall apply to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product.

(2) This Directive is without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract.

(3) This Directive is without prejudice to Community or national rules relating to the health and safety aspects of products.

…’

7 Article 4 of the Directive provides:

‘Member States shall neither restrict the freedom to provide services nor restrict the free movement of goods for reasons falling within the field approximated by this Directive.’

8 Article 5 of the Directive, headed ‘Prohibition of unfair commercial practices’, reads:

‘(1) Unfair commercial practices shall be prohibited.

(2) A commercial practice shall be unfair if:

(a) it is contrary to the requirements of professional diligence,

and

(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.

...

(4) In particular, commercial practices shall be unfair which:

(a) are misleading as set out in Articles 6 and 7,

or

(b) are aggressive as set out in Articles 8 and 9.

(5) Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. The same single list shall apply in all Member States and may only be modified by revision of this Directive.’

National law

9 Paragraph 9a of the Federal Law on Unfair Competition of 1984 (Bundesgesetz gegen den unlauteren Wettbewerb 1984) (BGBl. I, 448/1984), as amended by BGBl. I, 136/2001 (‘the UWG’), reads:

‘(1) Any person who, in carrying on a competitive commercial activity,

1. announces, in public advertisements or other communications destined for a large number of persons, that he is granting to consumers free advantages (bonuses) associated with products or services, or offers, announces or grants to consumers free advantages (bonuses) linked to periodicals or

2. proposes, announces or grants to undertakings free advantages (bonuses) associated with products or services,

may be subject to an action for an injunction and damages. That also applies where the gratuitous nature of that advantage is concealed by overall prices for the products or services, by fictitious prices for a bonus or in any other manner.

(2) Subparagraph 1 above shall not apply where the advantage consists in:

1. an accessory currently used in association with the product or accessory services that are usual practice,

2. samples,

3. advertising objects characterised by a very visible and durable designation of the undertaking which makes the advertising,

4. advantages of low value (bonuses) or minor objects of low value, provided the latter are not designed to form a collection the value of which exceeds the sum of the values of the various individual objects given,

5. a given sum of money, or a sum to be calculated in a given manner, which does not accompany the product,

6. a given quantity – or a quantity simply to be calculated by fraction – of the same product,

7. the supply of information or advice or

8. the granting of a right to participate in a competition (promotional game) in which the value of the individual participation ticket (calculated by dividing the total value of the prizes at stake by the number of participation tickets distributed) does not exceed EUR 0.36 and the to