Opinion of the Advocate General — ECLI:EU:C:2008:581
Date: 2008-10-21
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary, it is clear that a national provision such as Article 54 of the Belgian Law, which imposes a fundamental prohibition without providing for the possibility of taking into account the circumstances of each actual individual case is, by its very nature, more restrictive and prescriptive than the provisions of Directive 2005/29. (42) 89. In that connection, it must be noted that Article 54 of the Belgian Law concerns a field which is subject to full harmonisation and to which the transitional provisions of Article 3(5) of Directive 2005/29 do not apply. It is in any case not clear to what extent Article 54 of the Belgian Law is intended to implement the directives mentioned in Article 3(5). (43) Nor has that been explained by the Belgian Government. The derogating provision of Article 3(9) of Directive 2005/29 is not applicable either. 4. Withdrawal of the Commission’s Proposal for a Regulation on sales promotion in the Internal Market 90. The question arises as to what the consequences of the withdrawal of the Commission’s Proposal for a Regulation on sales promotion in the Internal Market are for that interpretation. The Belgian Government, supported by the French Government, essentially pleads that it assumed that the subject-matter of that regulation also included, inter alia, combined offers. In its view, the withdrawal of the Commission’s proposal does not permit the inference that the scope ratione materiae of Directive 2005/29 can now cover that field. 91. In my view, the Belgian Government cannot successfully rely on the protection of legitimate expectations, particularly as the legitimate expectation it claims to have entertained relates merely to a proposal for a Community legal act which ultimately never entered into force. As the Belgian Government itself states, the legislative processes for the regulation and Directive 2005/29 ran, in part, concurrently. As the constitutional representative of a Member State represented within the Council, the Belgian Government played an influential part in both legislative processes and was therefore always informed of their progress. It therefore cannot plead, in a legally effective manner, ignorance of what occurred in both legislative processes. (44) 92. The Court has emphasised the special responsibility of the Member States’ governments represented within the Council in the implementation of directives. Accordingly, it has concluded from the fact that they participate in the preparatory work for directives that they must be in a position to prepare within the period prescribed the legislative provisions necessary for their implementation. (45) 93. By no later than the date of withdrawal of the Commission proposal, (46) the Belgian Government should therefore have examined, if necessary, to what extent the scope ratione materiae of Directive 2005/29 would also apply to fields previously covered by the proposed regulation. The need for such action was obvious, particularly since, according to its original first draft, Directive 2005/29 was intended (a) to introduce general, subsidiary requirements in the field of Community consumer protection law and (b) to achieve full harmonisation of the Member States’ rules on unfair commercial practices. (47) Against the background that the withdrawal took place at a time when the period for the transposition of Directive 2005/29 was still running, it was for the Belgian legislature to take account of those facts when adapting the national law. 94. This argument should therefore be rejected. 5. Conclusion 95. In the light of the foregoing considerations, I conclude that Directive 2005/29 precludes a national provision such as Article 54 of the Belgian Law. D – Compatibility of Article 54 of the Belgian Law with the fundamental freedoms 96. The reference in Case C‑299/07 further seeks to ascertain whether Article 49 EC precludes a national provision such as Article 54 of the Belgian Law. 97. Although no corresponding request for an interpretation of Article 49 EC is explicitly contained in the question referred in Case C‑261/07, the national court nevertheless expressly addresses this issue in the grounds of its decision making the reference. In that respect, it should be recalled that it is for the Court to provide the national court with all the elements of interpretation of Community law which may enable it to rule on the case before it, whether or not reference is made thereto in the questions referred. (48) In view of the effects which a preliminary ruling will have on the legal order of the Kingdom of Belgium, it seems to me essential to deal with Article 49 EC in the context of an examination of Case C‑261/07 as well. 98. First, however, it is necessary to clarify whether the provisions of the EC Treaty can even be regarded as an assessment criterion and which fundamental freedoms, if any, would be applicable in this particular case. 1. Fundamental freedoms as an assessment criterion 99. Although it is the Court’s settled case-law that, where a matter is regulated in a harmonised manner at Community level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not of the provisions of the EC Treaty, (49) it should nevertheless be borne in mind, as the Commission rightly points out, that the Member States were required to implement Directive 2005/29 by 12 December 2007 at the latest. (50) As already demonstrated, it was for the national court to assess whether an interpretation of national law in conformity with the Directive was necessary even before the period for transposition expired, in order to ensure achievement of the result envisaged by the Directive. However, that problem did not concern the directly applicable provisions of the EC Treaty on the fundamental freedoms, which do not require transposition, so that their fundamental applicability was beyond question. For that reason, I am of the opinion that the provisions of the EC Treaty, as least so far as concerns the main proceedings in this case, can be considered as an assessment criterion together with Directive 2005/29. 2. Scope of the fundamental freedoms 100. In its order for reference in Case C‑299/07, the Rechtbank van koophandel te Antwerpen examines the conformity with Community law of the national provisions in issue in the light of the provisions of primary legislation on the free movement of services and goods. In that context, it places the emphasis of the examination on Article 28 EC. The Belgian and French Governments and the Commission refer to it in support of their argument that the fundamental freedom of free movement of goods and not freedom to provide services is the main focus of both cases. a) Freedom to provide services 101. Under Article 50 EC, services are to be considered to be ‘services’ where they are normally provided for remuneration. According to its own statements, Sanoma provides marketing and advertising services in the distribution of numerous magazines, including the magazine ‘Flair’, in several Member States of the European Union, including Belgium, the Netherlands and Luxembourg. Those services include the publication of the discount offer in that particular magazine, which forms part of the background to the main proceedings. It can therefore be regarded as a service within the meaning of Article 50 EC. 102. In Case C‑261/07, on the other hand, it is apparent from the order for reference that Total offers its customers a free breakdown service, in which the relevant services are provided by a third party, namely the company Touring. Although no details are known regarding the contractual relationship between the two companies, it can be assumed that Touring thereby provides Total with services in return for payment. b) Free movement of goods 103. However, from the consumer’s perspective, which in my view is decisive, the purchase of a magazine combined with a discount offer, as is the situation in Case C‑299/07, ultimately appears to be the acquisition of goods and not of a service, with the result that it can be regarded as falling within the scope ratione materiae of the free movement of goods. 104. The same applies to the facts in Case C‑261/07, which primarily concerns the acquisition of fuel and thus goods. While the free breakdown services provided by the company Touring associated with Total certainly benefit the consumer, the latter does not purchase the goods solely for the sake of the services linked with them. Rather it is case that those services are intended, in accordance with the function of combined offers, to create an incentive for the purchase. (51) 105. Consequently, these cases fall within the scope of both fundamental freedoms. c) Relationship between free movement of services and free movement of goods 106. The relationship of these fundamental freedoms to one another is at issue here. The observations of the Belgian and French Governments must be understood to the effect that, in their view, the free movement of goods overrides the freedom to provide services. 107. Where a national measure restricts both the free movement of goods and the freedom to provide services, the Court will in principle examine it in relation to one only of those two fundamental freedoms where it is shown that, in the circumstances of the case, one of them is entirely secondary in relation to the other and may be considered together with it. (52) Moreover, it must be borne in mind that, under Article 50 EC, the freedom to provide services is subsidiary to the free movement of goods. 108. In these cases, however, the freedom to provide services cannot simply be considered together with the free movement of goods. A distinction between free movement of goods and free movement of services such as that proposed by the Belgian and French Governments is possible only in the case of ‘mixed supplies’ within the same supply relationship. (53) 109. As the Commission has rightly recognised, (54) both fundamental freedoms relate respectively to different legal relationships – on the one hand, the relationship between businesses, on the other, the relationship between the business and the consumer – so that neither can be regarded as secondary in relation to the other. Accordingly, the compatibility of Article 54 of the Belgian Law with Community law must be assessed in the light of both fundamental freedoms. 3. Restriction on the fundamental freedoms a) Free movement of goods i) Measure having equivalent effect – Dassonville formula 110. The free movement of goods is guaranteed in particular by the prohibition of quantitative restrictions on imports and all measures having equivalent effect between Member States of the European Community under Article 28 EC. 111. According to the Court’s settled case-law, the prohibition of measures having equivalent effect to restrictions which is set out in Article 28 EC covers all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade. (55) Even if a measure is not intended to regulate trade between the Member States, what is essential is its effect on intra-Community trade, whether actual or potential. (56) Moreover, according to the case-law, potential effects on intra-Community trade are in themselves sufficient for a cross-border situation to be assumed to exist in a particular case. (57) 112. In Oosthoek’s Uitgeversmaatschappij, (58) the Court affirmed the existence of a restriction on free movement of goods in connection with a Netherlands prohibition on free gifts. At that time it took the view that legislation which restricts or prohibits certain forms of advertising and certain means of sales promotion may, although it does not directly affect imports, be such as to restrict their volume because it affects marketing opportunities for the imported products. The possibility could not be ruled out that to compel a producer either to adopt advertising or sales promotion schemes which differ from one Member State to another or to discontinue a scheme which he considers to be particularly effective might constitute an obstacle to imports even if the legislation in question applied to domestic products and imported products without distinction. 113. I see in that case a certain parallel to the facts in Case C‑299/07. A prohibition on combined offers, such as that laid down in the Belgian Law, may in fact, although it does not itself regulate imports directly, make it potentially more difficult for undertakings to sell certain goods in Belgium than in other Member States where combined offers are allowed. That applies, for example, to Sanoma, an undertaking based in Finland, which, according to its own statements, communicates combined offers from various suppliers through its magazines, including in Finland, the Netherlands and Luxembourg, countries where there is no equivalent prohibition. Such a prohibition does in any case have the effect that Sanoma is allowed to sell such magazines in Belgium only once it has satisfied itself that the requirements of the Belgian Law are being complied with. 114. That would mean, at least under the broad definition of a measure having equivalent effect within the meaning of Article 28 EC, that there is here a restriction on the free movement of goods. – Selling arrangements 115. However, in Keck and Mithouard, (59) the Court made it clear that national provisions restricting or prohibiting certain selling arrangements are not such as to hinder trade between Member States, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. 116. A Member State’s prohibition on combined offers does not constitute a product-related provision, since it does not have as its subject-matter the designation, form, size, weight, composition, presentation, labelling or packaging of a product. (60) It is, on the contrary, a marketing-related provision, which prohibits certain marketing methods (61) intended to promote sales and is thus ultimately a selling arrangement within the meaning of the case-law. 117. Finally, it is apparent from the order for reference (62) that the prohibition on making combined offers in Belgium applies equally to domestic and foreign traders. ii) Interim conclusion 118. In the light of the foregoing, I conclude that the prohibition on combined offers contained in Article 54 of the Belgian Law cannot be classified as a measure having equivalent effect within the meaning of Article 28 EC. 119. Accordingly, Article 28 EC does not preclude such a provision in a Member State. b) Freedom to provide services 120. Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where it lawfully provides similar services. (63) 121. The prohibition in Article 54 of the Belgian Law which is at issue in this case makes it more difficult for an undertaking such as Sanoma to provide other undertakings with advertising services which, under the legal definition contained in that statutory provision, are to be classified as combined offers. As already demonstrated, (64) Sanoma would in practice be forced to analyse every advertising measure in order to satisfy itself that it complies with the Belgian provision, whereas there would be no such requirement in relation to other countries of marketing, where no equivalent prohibition is in force. That requirement is certainly liable to render less advantageous the insertion of certain joint offers by Sanoma and its business partners, which are also aimed, inter alia, at the readership in Belgium. Consequently, there is here a restriction on the freedom to provide services. 122. The Court has consistently held that Article 49 EC cannot be applied to activities which are confined in all respects within a single Member State. (65) It must be stated that, unlike in Case C‑299/07, no cross-border situation is immediately obvious in Case C‑261/07, particularly as both Total and Touring have their headquarters in Belgium. Nevertheless, in my view, that circumstance does not preclude the applicability of Article 49 EC, since the Court’s case-law acknowledges that the provisions of Article 49 EC must apply in all cases where a person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established. (66) As Total states in its written observations, Total Assistance’s offer applies in more than 35 European countries. Since Touring also provides breakdown assistance for Total customers outside Belgium, it provides it, as its co-contractor, with a service which must be termed cross-border for the purposes of Article 49 EC. 123. A general prohibition on combined offers, which prohibits the provision of breakdown assistance linked to the purchase of fuel without affording an opportunity to examine the circumstances of the individual case is undoubtedly liable to prohibit with lasting effect the provision of services of the type described. It must therefore be seen as a restriction on the freedom to provide services. (67) 4. Justification 124. It is clear from the Court’s case-law that, since the freedom to provide services is one of the fundamental principles of the Community, (68) a restriction on that freedom is warranted only if it pursues a legitimate objective compatible with the Treaty and is justified by overriding reasons of public interest; if that is the case, it must be suitable for securing the attainment of the objective which it pursues and not go beyond what is necessary in order to attain it. (69) a) Consumer protection as an overriding reason of public interest 125. The regulatory purpose of the national provisions at issue in this case is, as is clear from the very title of the Law, consumer protection. The protection of consumers is recognised in the case-law as an overriding reason of public interest, which may justify a restriction on the freedom to provide services. (70) b) Suitability of a fundamental prohibition on combined offers 126. In the abovementioned judgment in Oosthoek’s Uitgeversmaatschappij, (71) the Court held that the offer of free gifts as a means of sales promotion is liable to mislead consumers as to the real prices of products and to distort the condition of competition based on efficiency. Accordingly, it considered that a provision which restricts or even prohibits such commercial practices for that reason is a suitable means of helping to ensure consumer protection and fair trading. 127. Although a combined offer cannot be equated conceptually with a free gift, (72) a non-transparent combined offer may mislead consumers as to the true content and actual characteristics of the combination of goods and/or services being promoted. An increased potential to mislead exists, in particular, where the trader conceals essential information or provides it in an unclear, incomprehensible or ambiguous manner. If the consumer is thereby placed under a definite false impression as to the favourable pricing of the combined offer, the characteristics or even the value of the linked products or services, he will at the same time be deprived of the opportunity to make a price and quality comparison of that offer with other supplier’s equivalent products or services. (73) In that respect, a fundamental prohibition of combined offers is a wholly suitable means of preventing that risk for consumers. c) Necessity/proportionality 128. However, in my view, a fundamental prohibition of combined offers goes beyond what is necessary to attain the objective of consumer protection. 129. I agree with the Commission that such protection can also be ensured by means of a more flexible and differentiated approach, by prohibiting only those combined offers which, depending on the actual circumstances of the individual case, are to be regarded as either misleading or aggressive, or which materially distort or are likely to distort the economic behaviour of the average consumer. Directive 2005/29 offers a model for such an approach. 130. A differentiated approach is all the more necessary since, as already demonstrated, not every combined offer can be termed an unfair commercial practice. (74) The principle of proportionality can therefore be complied with only by a provision which gives the maximum possible effect to freedom to provide services and prohibits only those commercial practices which are harmful from the point of view of consumer protection. However, a provision such as that laid down by Article 54 of the Belgian Law conflicts with that liberal approach if it establishes a fundamental prohibition of combined offers and allows only exhaustively listed types of such offers. (75) 131. Consequently, there is in this case a disproportionate restriction on the freedom to provide services. 5. Interim conclusion 132. Article 49 EC therefore precludes a national provision such as Article 54 of the Belgian Law. VII – Conclusion 133. In the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Rechtbank van koophandel te Antwerpen as follows: Directive 2005/29/EC of the European Parliament and of the Council concerning unfair commercial practices and Article 49 EC concerning the freedom to provide services preclude a national provision such as Article 54 of the Belgian Law of 14 July 1991 on trade practices and consumer information and protection which – except in the cases listed exhaustively in that law – prohibits any combined offer by a seller to a consumer whereby the acquisition, whether or not free of charge, of products, services, other advantages or of vouchers with which they can be obtained is linked to the acquisition of other, even identical, products or services, and this regardless of the circumstances of the case, in particular regardless of the influence which the specific offer may have on the average consumer and of whether that offer can be considered in the specific circumstances to be contrary to professional diligence or fair commercial practices. 1 – Original language: German. 2 – 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 (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22). 3 – Wet van 14 juli 1991 betreffende de handelspraktijken en de voorlichting en bescherming van de consument (Belgisch Staatsblad of 19 January 1994). 4 – Proposal for a European Parliament and Council Regulation concerning sales promotions in the Internal Market, COM(2001) 546 final (2001/0227/COD), presented on 4.10.2001 (OJ 2002 C 75E, p. 11). 5 – Directive 2005/29 translates into legislation the Commission’s ideas regarding the future of consumer protection in the European Union, as they are discussed in its Green Paper of 2 October 2001 (COM(2001) 531 final). In that Green Paper, the Commission complains that the consumer internal market has not achieved its potential nor matched, in business-to-consumer transactions, the development of the internal market in business-to-business transactions. Consumers rarely participate directly in the internal market through cross-border shopping. The Commission sees the cause as lying in a fragmented set of regulations in the Member States and in a fragmented system of enforcement, which deters consumers. In the paper it proposes inter alia the adoption of an EU framework directive to harmonise national fairness rules for business-to-consumer commercial practices. Its approach was incorporated in the present Directive 2005/29. 6 – Also according to Henning-Bodewig, F., ‘Die Richtlinie 2005/29/EG über unlautere Geschäftspraktiken’, Gewerblicher Rechtsschutz und Urheberrecht Internationaler Teil, 2005, No 8/9, pp. 629, 630; Massaguer, J., El nuevo derecho contra la competencia desleal – La Directiva 2005/29/CE sobre las Prácticas Comerciales Desleales, Cizur Menor 2006, pp. 14, 51, 53; Micklitz, H.-W., ‘Das Konzept der Lauterkeit in der Richtlinie 2005/29/EG’, Droit de la consommation/Konsumentenrecht/Consumer law, Liber amicorum Bernd Stauder, Basel 2006, pp. 299,306; Kessler, J., ‘Lauterkeitsschutz und Wettbewerbsordnung – Zur Umsetzung der Richtlinie 2005/29/EG über unlautere Geschäftspraktiken in Deutschland und Österreich’, Wettbewerb in Recht und Praxis, issue No 7, 2007, p. 716; De Cristofaro, G., ‘La direttiva 2005/29/CE – Contenuti, rationes, caratteristiche’, Le pratiche commerciali sleali tra imprese e consumatori, Turin 2007, p. 32 et seq.; and Di Mauro, L., ‘L’iter normativo: Dal libro verde sulla tutela die consumatori alla direttiva sulle pratiche commerciali sleali’, Le pratiche commerciali – Direttive comunitaria ed ordenamento italiano, Milan 2007, p. 26, who take the view that the objective of Directive 2005/29 is a full harmonisation of national rules. 7 – Wet van 5 juni 2007 tot wijziging van de wet van 14 juli 1991 betreffende de handelspraktijken en de voorlichting en bescherming van de consument (Moniteur Belge/Belgisch Staatsblad/Belgisches Staatsblatt of 21 June 2007, No 189, p. 34272). 8 – As Advocate General Jacobs observed in his Opinion in Case C‑129/96 Inter-Environnement Wallonie [1997] ECR I‑7411, paragraph 30, the obligation to implement a directive arises not from the final date for implementation but on the day on which the directive enters into force or takes effect as laid down in Article 254 EC. Under Article 254(1) EC, directives adopted in accordance with the procedure referred to in Article 251 EC enter into force on the date specified in them. That was, as already observed, the case on 12 June 2005. In the view of Hoffmann, C., ‘Die zeitliche Dimension der richtlinienkonformen Auslegung’, Zeitschrift für Wirtschaftsrecht, 2006, No 46, p. 2113 et seq., the phase before the expiry of the period for transposition is not without legal effects. The Community objective of harmonisation is definitively implemented as soon as the directive enters into force and the instruction to transpose it is issued to the Member States. The directive is therefore binding as regards its objectives and also in that respect already becomes part of the national legal order. 9 – Case 111/75 Mazzalai [1976] ECR 657, paragraph 7; Case C-373/95 Maso and Others [1997] ECR I-4051, paragraph 28); and Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I‑11453, paragraph 32. 10 – British American Tobacco (Investments) and Imperial Tobacco, cited above in footnote 9, paragraph 33. 11 – See inter alia Case C-83/91 Meilicke [1992] ECR I‑4871, paragraph 22, and Case C-380/01 Schneider [2004] ECR I‑1389, paragraph 20. 12 – Schneider, cited in footnote 11, paragraph 21. 13 – See inter alia Case 244/80 Foglia v Novello [1981] ECR 3045, paragraph 18; Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others [1995] ECR I‑1567, paragraph 29; Case C‑314/96 Djabali [1998] ECR I‑1149, paragraph 19; and Schneider, cited in footnote 11, paragraph 22. See the Opinion of Advocate General Tizzano in Case C‑165/03 Längst [2005] ECR I‑5640, point 45, and the judgment in the same case [2005] ECR I‑5637, paragraphs 30 to 35. 14 – In paragraph 5 of both orders for reference, the national court first states that ‘Directive 2005/29 does not lay down a prohibition of combined offers, so that the legislature will probably be obliged to amend or repeal Article 54 [of the Belgian Law] and/or the courts – once the period for transposition has expired – will probably be entitled and obliged to disapply that prohibition to the extent that it imposes obligations which the Directive no longer permits’. The national court then notes that ‘it would seem that the Belgian Government is not considering the abolition of that fundamental prohibition of combined offers’. 15 – See inter alia Case 26/62 Van Gend & Loos [1963] ECR 1; Case 6/64 Costa v ENEL [1964] ECR 585; Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; and Case 106/77 Simmenthal [1978] ECR 629. 16 – Case C‑129/96 Inter-Environnement Wallonie [1997] ECR I‑7411, paragraph 45; Case C‑14/02 ATRAL [2003] ECR I‑4431, paragraph 58; Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 67; and Case C‑212/04 Adenelerand Others [2006] ECR I‑6057, paragraph 121. 17 – Case C‑106/89 Marleasing [1990] ECR I‑4135, paragraph 8; Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph 26; Inter-Environnement Wallonie, cited in footnote 16, paragraph 40; Case C‑131/97 Carbonari and Others [1999] ECR I‑1103, paragraph 48; and Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 110. 18 – Inter-Environnement Wallonie, cited in footnote 16, paragraph 46. Also to that effect Vcelouch, P., Kommentar zu EU- und EG-Vertrag (ed. Heinz Mayer), Vienna 2004, ‘Art. 249’, paragraph 45, p. 16. 19 – Adeneler and Others, cited in footnote 16, paragraph 123. 20 – Case C‑81/05 Cordero Alonso [2006] ECR I‑7569, paragraph 29. 21 – The condition for an intervention by the national court is that there must be a danger that the results envisaged by the directive will be prejudiced after the period for transposition has expired (also to that effect Hoffmann, C., ‘Die zeitliche Dimension der richtlinienkonformen Auslegung’, Zeitschrift für Wirtschaftsrecht, 2006, No 46, p. 2116). Also, in a similar vein, Schroeder, W., EUV/EGV Kommentar (ed. Rudolf Streinz), Art. 249 EGV, paragraph 139, p. 2197, in whose view a duty for the authorities and courts to interpret national law in conformity with the Directive can be considered only by way of an exception, where legislative implementing measures give grounds for believing that the achievement of the results envisaged by the directive will be definitively frustrated. 22 – It is true that the obligation on a national court to interpret domestic law in conformity with directives is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot therefore serve as the basis for an interpretation of national law contra legem (see Case 80/86 Kolpinghuis [1987] ECR 3969, paragraph 13; Adeneler and Others, cited in footnote 16, paragraph 110; and Case C‑268/06 Impact [2008] ECR I‑0000, paragraph 100; see, by analogy, Case C‑105/03 Pupino [2005] ECR I‑5285, paragraphs 44 and 47. However, in so far as a directive is directly applicable, the general requirement of interpretation in conformity with Community law applies. Under that requirement, where application in conformity with Community law is not possible, the national court must fully apply Community law and protect the rights conferred thereunder on individuals, if necessary disapplying any provision in the measure application of which would, in the circumstances of the case, lead to a result contrary to Community law (see Case 249/85 Albako [1987] ECR 2345, paragraph 13 et seq.; Case 157/86 Murphy [1988] ECR 673, paragraph 11; and Case C‑262/97 Engelbrecht [2000] ECR I‑7321, paragraph 40; and Schroeder, W., cited above, footnote 21, Art. 249 EGV, paragraph 127, p. 2195). 23 – See inter alia Costa v ENEL, cited in footnote 15; Case C‑17/00 De Coster [2001] ECR I‑9445, paragraph 23; and Case C‑265/01 Pansard and Others [2003] ECR I‑683, paragraph 18. 24 – The intensity of the linkage, the function of the components of the offer within the all-inclusive offer (for example, the main or minor function) and the price share of each part of the offer in the total price are decisive parameters for the division of combined offers into categories. A distinction is made between combined offers in the narrower sense and in the broader sense. In the case of combined offers in the narrower sense, all the linked products possess a main function. In contrast to other package deals, which are characterised by the fact that there is a relationship of the products or services to one another as main and ancillary product or ancillary service, in this case all the components of the offer have equal importance. This form of linkage includes, in particular, the all-inclusive price offer, in which different products or services are put together as a package with an all-inclusive price. Combined offers in the wider sense include those offers in which several products or services are also put together and sold as a package, but which do not have the characteristic features of an all-inclusive price offer. They include, in particular, the case of so-called enticement offers in which, together with a main product or service offered in the normal way, another, minor product or service is offered at a particularly favourable price, but which cannot be purchased without the main product. They also include the case of the free gift of a product or service with a product offered against payment (see, in this regard, Charaktiniotis, S., Die lauterkeitsrechtlichen Zulässigkeitsschranken der Kopplungsangebote nach der Aufhebung der Zugabeverordnung, Frankfurt am Main 2005, pp. 28-33). 25 – To that effect, Charaktiniotis, S., cited above (footnote 24), p. 19; Köhler, H., ‘Kopplungsangebote (einschließlich Zugaben) im geltenden und künftigen Wettbewerbsrecht’, Gewerblicher Rechtsschutz und Urheberrecht, 2003, No 9, p. 729. Bartolomucci, P., ‘Le pratiche commerciali sleali ed il contratto: Un’evoluzione del principio della transparenze“, Le pratiche commerciali – Direttive comunitaria ed ordenamento italiano, Milan 2007, p. 261, also counts the offering of accessory services as a marketing measure to which businesses resort in order to gain scope for themselves in the relevant market and win over to themselves the largest possible number of customers. 26 – See Abbamonte, G., ‘The unfair commercial practices Directive and its general prohibition’, The regulation of unfair commercial practices under EC Directive 2005/29 – New rules and new techniques, Norfolk 2007, p. 17, who takes the view that the protection of competitors from unfair competition is an indirect effect of the Directive. 27 – See point 48 of this Opinion. 28 – To that effect, Massaguer, J., cited above (footnote 6), p. 15; Abbamonte, G., cited above (footnote 26), p. 19, and De Brouwer, L., ‘Droit de la Consommation - La Directive 2005/29/CE du 11 mai 2005 relative aux pratiques comerciales déloyales’, Revue de Droit Commercial Belge, No 7, September 2005, p. 796, who draws from the circumstance of maximum harmonisation by Directive 2005/29 the conclusion that Member States are not authorised to adopt more prescriptive provisions, even if the latter are intended to ensure a higher level of consumer protection. De Cristofaro, G., cited above (footnote 6), p. 32, is of the view that Member States are not allowed either to derogate from the provisions of the Directive or to set a higher level of consumer protection. In the view of Kessler, J., cited above (footnote 6), p. 716, the Directive not only sets minimum standards, but at the same time prevents the Member States from maintaining in force rules which, in the interests of a postulated consumer orientation, go beyond the substantive provisions of the Directive and thus contain more stringent requirements. See also Case C‑44/01 PippigAugenoptik [2003] ECR I‑3095, paragraphs 40 and 44, in which the Court drew attention to the extent of the Member States’ powers in the case of a minimum and of an exhaustive harmonisation. On the one hand, it held that the Community legislature had carried out only a minimal harmonisation of national rules on misleading advertising, so that Article 7(1) of Directive 84/450 allowed Member States to apply stricter national provisions in that area, to ensure greater protection of consumers in particular. On the other hand, it rejected an equivalent competence for protection against misleading advertising in connection with comparative advertising, since Directive 84/450 carried out an exhaustive harmonisation of the conditions under which comparative advertising in Member States might be permissible. 29 – The directives referred to in Article 3(5) of Directive 2005/29, containing minimum harmonisation clauses, include the following: Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31); Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59); Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis (OJ 1994 L 280, p. 83); Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19); Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ 1998 L 80, p. 27); and Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23). 30 – Also according to the scheme of analysis used by De Cristofaro, G., cited above (footnote 6), p. 12, and Henning-Bodewig, F., cited above (footnote 6), p. 631. 31 – See, inter alia, Case 51/76 Verbond van Nederlandse Ondernemingen [1977] ECR 113, paragraph 22; Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 55; Case C‑336/97 Commission v Italy [1999] ECR I‑3771, paragraph 19; Case C‑97/00 Commission v France [2001] ECR I‑2053, paragraph 9; Case C‑478/99 Commission v Sweden [2002] ECR I‑4147, paragraph 15; and Case C‑233/00 Commission v France [2003] ECR I‑6625, paragraph 75. 32 – The transposition of a directive is part of a two‑stage legislative process in which the second stage must take place at the level of national law. Directive law is given concrete expression by substantive transposition at the level of national law (see, in this regard, Vcelouch, P., cited above (footnote 18), ‘Art. 249’, paragraphs 48 and 50, pp. 17 and 18). 33 – Abbamonte, G., cited above (footnote 26), p. 15, therefore describes the approach followed by the Directive as liberal. Under it, everything that is not expressly prohibited is permitted. De Cristofaro, G., cited above (footnote 6), p. 11, correctly notes that the Directive follows a selective approach in that it lays down the criteria for regarding a commercial practice as unfair, whereas it completely omits to define the characteristics of a fair commercial practice. 34 – This dictum of Roman law means, literally, ‘in doubt for freedom’ and originally applied only to the question of whether or not someone was a slave (see Liebs, D., Lateinische Rechtsregeln und Rechtssprichwörter, Munich 1998, p. 103). In modern jurisprudence, the minimum freedom of each individual in a given social order is associated with that principle. Thus, Kelsen, H., Reine Rechtslehre, Vienna 1960, p. 43, points out that the law as a social order laying down sanctions regulates human conduct not only in a positive sense, by imposing such conduct in such a way that it attaches a coercive act as a sanction to the opposite conduct and thus prohibits the latter, but also in a negative manner, by attaching no coercive act to particular conduct, and thus not prohibiting such conduct and not imposing the opposite conduct. Kelsen infers from this that ‘conduct that is not prohibited in law is (in that negative sense) permitted in law’. Also to that effect, Alexy, R., Theorie der Grundrechte, Baden-Baden 1985, p. 517, who refers to a prima facie primacy of legal freedom as a principle of law. 35 – In point 19 of its written answer to the Court’s question, the Belgian Government points out that Article 54 of the Belgian Law has its origin in the Law of 14 July 1971. At that time, the Belgian legislature was of the view that combined offers could not per se be regarded as unfair commercial practices, with the consequence that it was obliged to examine the fairness of combined offers in individual cases. 36 – This follows by contrary inference from the third sentence of recital 17, which actually states that the commercial practices listed in Annex I 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’. 37 – Abbamonte, G., cited above (footnote 26), p. 21, points out that the Member States are not allowed to extend the list of prohibited commercial practices contained in Annex I to Directive 2005/29 themselves. Were they permitted to do so, that would have the effect of circumventing the maximum harmonisation which the Directive is intended to achieve, thereby frustrating the objective of legal certainty. 38 – According to Massaguer, J., cited above (footnote 6), pp. 50, 51, the national legislature is barred, by reason of the full harmonisation effected by Directive 2005/29, from introducing other prohibited commercial practices over and above those listed in Annex I. Nor may the national legislatures introduce fundamental (‘per se’) prohibitions (that is, prohibitions which do not require any case-by-case assessment of the existence of the conditions specified in Articles 5 to 9 of Directive 2005/29) which go beyond those listed in Annex I. The author therefore has doubts whether a fundamental prohibition of combined offers would be compatible with Directive 2005/29 at all. 39 – Also according to Bernitz, U., ‘The Unfair Commercial Practices Directive: Scope, Ambitions and Relation to the Law of Unfair Competition’, The Regulation of Unfair Commercial Practices under EC Directive 2005/29 – New Rules and New Techniques, Norfolk 2007, p. 39, which also cites recital 18 in the preamble to the Directive. That recital states: ‘National courts and authorities will have to exercise their own faculty of judgement, having regard to the case-law of the Court of Justice, to determine the typical reaction of the average consumer in a given case’. In addition, recital 20 mentions recourse to administrative or judicial action. 40 – Various systems of penalties under fair trading legislation are to be found in the Community Member States – a result of historical developments and differently structured legal systems. Community law has previously only selectively standardised the Member States’ penalties and procedural rules and does not prescribe any particular system for combating unfair commercial practices. Directive 2005/29 does not alter anything in regard to that acceptance by Community law of different national enforcement systems. It remains a matter for the national legislatures whether the control of unfair commercial practices is effected using administrative, criminal or civil law remedies, as the third subparagraph of Article 11(1) of the Directive confirms. In that regard, combinations of different systems of penalties are permissible. They also have competence to stipulate whether a judicial and/or an administrative procedure is to take place (see, in this regard, Alexander, C., ‘Die Sanktions- und Verfahrensvorschriften der Richtlinie 2005/29/EG über unlautere Geschäftspraktiken im Binnenmarkt – Umsetzungsbedarf in Deutschland?’, Gewerblicher Rechtsschutz und Urheberrecht, 2005, No 10, p. 810, and Massaguer, J., cited above (footnote 6), p. 144). 41 – Stuyck, J., ‘The Unfair Commercial Practices Directive and its Consequences for the Regulation of Sales Promotion and the Law of Unfair Competition’, The regulation of unfair commercial practices under EC Directive 2005/29 – New rules and new techniques, Norfolk 2007, p. 170, points out that Directive 2005/29 requires a case‑by case assessment of the unfairness of a commercial practice. He therefore takes the view that a national provision which imposes and/or abstractly regulates a fundamental prohibition of particular forms of sales promotion, such as selling at a loss, prize offers, coupons, clearance sales etc., without giving the courts competence to carry out a case‑by‑case assessment of whether the particular commercial practice is to be regarded as unfair to consumers, can no longer be maintained in the light of Directive 2005/29. 42 – See De Brouwer, L., cited above (footnote 28), p. 795, who expresses doubts regarding the compatibility with Directive 2005/29 of the Belgian prohibition of combined offers. 43 – See point 77 of this Opinion. 44 – See my Opinion in Case C‑319/06 Commission v Luxembourg [2008] ECR I‑0000, point 45, in which I took the view that a government, by virtue of its status as the constitutional representative of a Member State represented within the Council, must acknowledge that it is aware of the interpretative declarations made by that institution in the course of the legislative process. 45 – Case 301/81 Commission v Belgium [1983] ECR 467, paragraph 11, and Case C‑319/99 Commission v France [2000] ECR I‑10439, paragraph 10. 46 – The Commission’s decision to withdraw its Proposal for a Regulation was published in OJ 2006 C 64, p. 3. However, the Commission had already announced that decision in its Communication ‘Outcome of the screening of legislative proposals pending before the Legislator’ COM(2005) 462 final, p. 10, of 27 September 2005. 47 – Also according to Stuyck, J., cited above (footnote 41), p. 161, who voices the suspicion that many Member States must not have been aware that the provisions of the withdrawn Proposal for a Regulation, which concerned the relationship between the trader and the consumer, were nevertheless ultimately included in Directive 2005/29 (in view of its objective of full harmonisation). 48 – See Case C‑241/89 SARPP [1990] ECR I‑4695, paragraph 8; Case C‑315/92 Verband Sozialer Wettbewerb [1994] ECR I‑317, ‘Clinique’, paragraph 7; Case C‑87/97 Consorzio per la tutela del formaggio Gorgonzola [1999] ECR I‑1301, paragraph 16; Case C‑456/02 Trojani [2004] ECR I‑7573, paragraph 38; and Case C‑215/03 Oulane [2005] ECR I‑1215, paragraph 47. 49 – Case 5/77 Tedeschi [1977] ECR 1555, paragraph 35; Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 35; Case C‑37/92 Vanacker and Lesage [1993] ECR I‑4947, paragraph 9; Case C‑323/93 Centre d’insémination de la Crespelle [1994] ECR I‑5077, paragraph 31; Joined Cases C‑427/93, C‑429/93 and C‑436/93 Bristol-Myers Squibb and Others [1996] ECR I‑3457, paragraph 25; Case C‑324/99 Daimler Chrysler [2001] ECR I‑9897, paragraph 32; and Case C‑322/01 Deutscher Apothekerverband [2003] ECR I‑14887, paragraph 64. See also, in this regard, my Opinion in pending Case C‑445/06 Danske Slagterier v Germany [2008] ECR I‑0000, point 79. 50 – See point 49 of this Opinion. 51 – See point 69 of this Opinion. 52 – Case C‑275/92 Schindler [1994] ECR I‑1039, paragraph 22, and Case C‑390/99 Canal Satélite Digital [2002] ECR I‑607, paragraph 31. 53 – In the view of Holoubek, M., EU-Kommentar (ed. Jürgen Schwarze), ‘Art. 50 EG’, paragraph 15, p. 793; Budichowsky, J., Kommentar zu EU- und EG-Vertrag (edited by Heinz Mayer), Vienna 2004, ‘Art. 49, 50,’ paragraph 50, p. 15, and Kluth, W., in Calliess/Ruffert (ed.), Kommentar zu EUV/EGV, 3rd edition, 2007, ‘Art. 49, 50’, paragraph 15, pp. 821, 822, a distinction must be drawn between free movement of goods and freedom to provide services when ‘mixed supplies’ are involved. In that regard, the mixing may either consist in the fact that the supply of goods and the service related to it are the subject of one and the same supply relationship (for example, supply of a computer system including installation of an operating program) or it may actually be unclear whether a particular transaction should be classified as a supply of goods or a service (for example, certain types of skilled or manual work). In the former case, it must first be examined whether a separation of the two areas is conceivable (see Case 155/73 Sacchi [1974] ECR 509, paragraph 6 et seq., in which a transmission of television signals was classified as a provision of services, whereas films and sound recordings were classified as goods. If such a breakdown into individual goods or services is not possible, that is to say, is to be assessed as a single supply, that assessment must be based on a rule of preponderance. Under such a rule, the predominant content of the supply in question is the determining factor. The effect of a distinction drawn according to that criterion may therefore be that the service aspect is purely incidental in character, so that the service is subsumed under the free movement of goods (see Case C‑202/88 France v Commission [1991] ECR I‑1223, relating to the connection, bringing into service and maintenance of telecommunications terminal equipment). 54 – In its written observations, the Commission first assesses the applicability of the provisions on the free movement of goods (points 28 to 30) and then, by way of precaution, those on the freedom to provide services (points 32 to 38). 55 – See Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard [1993] ECR I‑6097, paragraph 11; Case C‑217/99 Commission v Belgium [2000] ECR I‑10251, paragraph 16; Case C‑420/01 Commission v Italy [2003] ECR I‑6445, paragraph 25; Case C‑192/01 Commission v Denmark [2003] ECR I‑9693, paragraph 39; Case C‑41/02 Commission v Netherlands [2004] ECR I‑11375, paragraph 39; Case C‑147/04 De Groot en Slot Allium and Bejo Zaden [2006] ECR I‑245, paragraph 71; Case C‑65/05 Commission v Greece [2006] ECR I‑10341, paragraph 27; Case C‑54/05 Commission v Finland [2007] ECR I‑2473, paragraph 30; Case C‑297/05 Commission v Netherlands [2007] ECR I‑7467, paragraph 53; Case C‑143/06 Ludwigs-Apotheke [2007] ECR I‑9623, paragraph 25; and Case C‑265/06 Commission v Portugal [2008] ECR I‑0000, paragraph 31. 56 – See point 39 of the Opinion of Advocate General Mazák in Case C‑254/05 Commission v Belgium [2007] ECR I‑4269 and point 37 of my Opinion in Case C‑265/06 Commission v Portugal [2008] ECR I‑0000. 57 – Case C‑3/91 Exportur [1992] ECR I‑5529, paragraph 17 et seq. 58 – Case 286/81 Oosthoek’s Uitgeversmaatschappij [1982] ECR 4575, paragraph 15. The applicant in the main proceedings was an undertaking which sold throughout the Dutch‑speaking area (the Netherlands, Belgium and a small part of northern France) encyclopaedias manufactured in Belgium and the Netherlands. Since 1974, in its newspaper and magazine advertisements and advertising brochures, that company had offered a dictionary, a universal atlas or a small encyclopaedia as a free gift to all subscribers to an encyclopaedia. Following the entry into force of the prohibition on free gifts in the Netherlands and in the light of that practice, criminal proceedings had been instituted against that undertaking for infringement of the provisions of the law instituting the prohibition. In the Court’s view, the economic activity in question was sufficient to be regarded as ‘transactions forming part of intra-Community trade’, that is to say, as a cross‑border situation (see paragraph 9 of the judgment). 59 – See, inter alia, Keck and Mithouard, cited in footnote 55, paragraph 16; Case C‑292/92 Hünermund and Others [1993] ECR I‑6787, paragraph 21; Case C‑254/98 TK-Heimdienst [2000] ECR I‑151, paragraph 23; Deutscher Apothekerverband, cited in footnote 49, paragraph 68; Case C‑71/02 Karner [2004] ECR I‑3025, paragraph 37; Case C‑20/03 Burmanjer and Others [2005] ECR I‑4133, paragraph 24; Case C‑441/04 A-Punkt Schmuckhandels [2006] ECR I‑2093, paragraph 15; Case C‑434/04 Ahokainen and Leppik [2006] ECR I‑9171, paragraph 19; and Case C‑244/06 Dynamic Medien [2008] ECR I‑0000, paragraph 29. 60 – See Keck and Mithouard, cited in footnote 55, paragraph 15, and Case C‑470/93 Mars [1995] ECR I‑1923, paragraph 12. 61 – Dubois, L./Blumann, C., Droit matériel de l’Union européenne, 3rd edition, Paris 2004, paragraph 396, p. 243, state that the Court has previously refrained from formulating a definition of selling arrangements or citing examples of such. However, the authors point out that the question of the existence of selling arrangements has arisen primarily in the sphere of advertising. In that context, the Court has largely assumed the existence of selling arrangements, as, for example, in connection with advertising prohibitions in certain places or to protect certain groups of people (Case C‑412/93 Leclerc-Siplec [1995] ECR I‑179), the public sale of foodstuffs (Case C‑254/98 TK-Heimdienst [2000] ECR I‑151), the sales of alcoholic beverages (Case C‑405/98 Gourmet international [2001] ECR I‑1795) or Internet sales of medicinal products (Deutscher Apothekerverband, cited in footnote 49). Stuyck, J., cited above (footnote 41), pp. 164, 165, referring to the abovementioned case‑law, states that the classification of national provisions on advertising and sales promotion as selling arrangements had the effect of granting them immunity from the application of Article 28 EC. 62 – See point 5 of the order for reference in Case C‑299/07. 63 – Case C‑76/90 Säger [1991] ECR I‑4221, paragraph 12; Case C‑43/93 Vander Elst [1994] ECR I‑3803, paragraph 14; Case C‑272/94 Guiot [1996] ECR I‑1905, paragraph 10; Case C‑3/95 Reisebüro Broede [1996] ECR I‑6511, paragraph 25; Case C‑222/95 Parodi [1997] ECR I‑3899, paragraph 18; Joined Cases C‑369/96 and C‑376/96 Arblade [1999] ECR I‑8453, paragraph 33; Case C‑205/99 Analir and Others [2001] ECR I‑1271, paragraph 21; and Case C‑439/99 Commission v Italy [2002] ECR I‑305, paragraph 22. 64 – See point 113 of this Opinion. 65 – Case C‑41/90 Höfner and Elser [1991] ECR I‑1979, paragraph 37; Case C‑332/90 Steen [1992] ECR I‑341, paragraph 9; Joined Cases C‑29/94 to C‑35/94 Aubertin and Others [1995] ECR I‑301, paragraph 9; and Case C‑134/95 USSL N° 47 di Biella [1997] ECR I‑195, paragraph 19. 66 – The Court has held that, although Article 49 EC had in mind the active and passive cross‑border provision of services, it did not intend to restrict its protective effects to such forms of services and consequently exempt other situations of cross‑border service provision from its scope of protection. The Court subsequently also brought within the scope of protection of Article 49 EC situations in which the service, while still offered and/or provided in another Member State, is nevertheless for a recipient who is established in the same Member State as the person providing the service (see Case C‑198/89 Commission v Greece [1991] ECR I‑727, paragraph 10; Case C‑154/89 Commission v France [1991] ECR I‑659, paragraph 10; Case C‑180/89 Commission v Italy [1991] ECR I‑709, paragraph 9; and Case C‑20/92 Hubbard [1993] ECR I‑3777, paragraph 12). 67 – See Longfils, F., L’offre conjointe: la métamorphose? – Régime actuel et perspectives en droits belge et européen, Brussels 2003, paragraph 100, p. 45, in whose view national legislation which regulates combined offers and in so doing lays down more stringent conditions than the other Member States, even though it is applicable without distinction to both national and imported products, may restrict the free movement of goods and the freedom to provide services. 68 – See inter alia Case 220/83 Commission v France [1986] ECR 3663, paragraph 17, and Case 252/83 Commission v Denmark [1986] ECR 3713, paragraph 17. 69 – See, in particular, Case C‑398/95 SETTG [1997] ECR I‑3091, paragraph 21; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I‑2941, paragraph 37; Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 61; and Case C‑341/05 Laval un Partneri [2007] ECR I‑11767, paragraph 101. 70 – See Reisebüro Broede, cited in footnote 63, paragraph 38 et seq.; Commission v France, cited in footnote 68, paragraph 20; and Oosthoek’s Uitgeversmaatschappij, cited in footnote 58, paragraph 16. 71 – Oosthoek’s Uitgeversmaatschappij, cited in footnote 58, paragraph 15. 72 – Also according to Köhler, H./Piper, H., Kommentar zum Gesetz gegen den unlauteren Wettbewerb mit Preisangabenverordnung, 3rd edition, Munich 2002, § 1, paragraph 250. A free gift can be defined as an (accessory) gift dependent on the purchase of the main product or service, which, at no separate charge, comes in addition to the main product or service different from it, has an economic value of its own and, because of its accessoriness in relation to the main item, is likely to influence the customer’s purchasing decision. However, in the case of combined and package offers, which combine two or more, even different, products in a single offer, there is no free gift, because each individual product or component is part of the whole package and is included in the calculation of the total price. 73 – Also according to Charaktiniotis, S., cited above (footnote 24), p. 197, who draws attention to the dangers of non-transparent combined offers. 74 – See point 83 of this Opinion. 75 – See point 85 of this Opinion.