Opinion of the Advocate General — ECLI:EU:C:2009:511
Date: 2009-09-03
Language of the case: German
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29 (European Parliament and Council Directive 2005/29) Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market must be interpreted as precluding national legislation which provides for a prohibition in principle, without taking account of the specific circumstances of individual cases, of commercial practices under which the participation of consumers in a prize competition or lottery is made conditional on the purchase of goods or the use of services. Annex I to Directive 2005/29 establishes an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) of the directive, are regarded as unfair ‘in all circumstances’. Consequently, as recital 17 in the preamble to Directive 2005/29 expressly states, 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. Thus, national legislation which establishes a prohibition in principle of practices which make the participation of consumers in a lottery or prize competition conditional on the purchase of goods or use of services does not meet the requirements of the directive. Lastly, that legislation runs counter to the content of Article 4 of Directive 2005/29, which expressly prohibits Member States from maintaining or adopting more restrictive national measures, even where such measures are designed to ensure a higher level of consumer protection. (see paras 45, 47, 50, 54 and operative part)