Election of "Footballer of the Year" - An Unfair Commercial Practice?
At the end of December 2007 the Austrian newspaper
Österreich organized an election of the “Footballer of the
Year”. The public could participate in this election 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. Competitor Mediaprint was of the view that this
“possibility of gain, subject to the purchase of the newspaper”,
constituted an unlawful bonus, because Austrian law prohibits the
offer of bonuses when purchasing newspapers and
magazines.
In the first instance the Handelsgericht Wien found for
Mediaprint and ordered Österreich to bring the election to
an end. In the appeal proceedings the Oberlandesgericht
Wien reached a different opinion. The
Oberlandesgericht held that the prohibition on sales with
bonuses could apply only if the gain announced was capable of
encouraging the public to buy the newspaper. In the view of the
Oberlandesgericht, this was not the case because there was
no question of such an “attraction effect”, in particular because
the public could also participate in the competition via the
Internet.
Mediaprint then appealed against this decision before the
Oberster Gerichtshof. The Gerichtshof raised the
question of whether Austrian law is indeed in line with the
European Directive on Unfair Commercial Practices (Directive
2005/29/EC) and submitted two preliminary questions to the European
Court of Justice.
In order to have a good understanding of the case it is
important to observe that the Directive on Unfair Commercial
Practices is aimed at the protection of consumers against
the unfair commercial practices of business. The preamble to the
Directive mentioned explicitly that the Directive does not apply to
national laws on unfair commercial practices which harm
only the competitors’ economic interests or which relate
to transactions between traders.
According to the Austrian government, the act involved is
particularly aimed at the maintenance of pluralism of the press in
Austria and not (primarily) aimed at consumer protection.
By its first preliminary question the Gerichtshof
wondered whether the Directive on Unfair Commercial Practices
precludes a national provision which lays down a general
prohibition on sales with bonuses and is not only designed to
protect consumers but also pursues other objectives, such as, for
example, the safeguarding of pluralism of the press and protection
of the weakest competitors.
The Court of Justice answered this question affirmatively. The
Directive on Unfair Commercial Practices is characterized by a
particularly wide scope ratione materiae which extends to
any commercial practice directly connected with the promotion, sale
or supply of a product to consumers. Some national laws concerning
unfair commercial practices which harm only the competitors’
economic interests or which relate to transactions between traders,
are excluded from the scope of the Directive. The Court of Justice
ruled that that was clearly not the case with respect to the
Austrian law concerned, which in the view of the Court of Justice
relates also to the protection of consumers and thus falls within
the scope of the Directive.
The Court of Justice considered that because the Directive carries
out a complete harmonization of the rules concerning unfair
commercial practices of undertakings vis-à-vis consumers, the
Member States may not adopt stricter rules than those provided for
in the Directive, not even in order to achieve a higher level of
consumer protection. Therefore, Austrian law is contrary to the
Directive.
By its second preliminary question, the Oberste Gericht
asked whether “sales with bonuses” must be regarded as “unfair
commercial practices” within the meaning of the Directive, merely
on the ground that the possibility of gain represents, for at least
part of the public concerned, the deciding factor which causes it
to buy the main product.
The Court of Justice answered this question negatively. This is
not a commercial practice that is on the so-called black list
pertaining to this Directive, Annex I. This means that this
commercial practice must be tested against the various criteria
mentioned in the Directive. On the basis of this testing the Court
must decide whether this commercial practice may materially distort
the consumer's economic behavior. That the possibility of gain
represents, for at least part of the public concerned, the deciding
factor which causes it to buy the main product, is a circumstance
that must be included in the testing. But the Court of Justice
ruled that “a sale with a bonus” in itself may not be considered to
be an unfair commercial practice at all.
Therefore, in the year 2010 the winner of the election of the
“footballer of the year 2007” organized by the newspaper Österreich
may go to dinner with his footballer with an easy mind.