Judgment — ECLI:EU:C:2010:660
Date: 2010-11-09
Language of the case: German
Court formation: Grand Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, it must be stated that the prohibition of combined offers contained in Paragraph 9a(1)(1) of the UWG in the strict interpretation adopted by the Austrian court is based on a legislative balancing act which is not consistent with the stipulations of Directive 2005/29. 107. Even though this conclusion is sufficient to answer the first question in the affirmative, in reply to the statements made by the referring court and the Austrian Government, I will examine below, in the alternative, the compatibility of the contested provision with the other requirements laid down in Article 5(2) of the directive. Failure to meet the requirements of professional diligence – Conformity of legal conditions 108. An obvious difference with the stipulations of the directive is that, even under a strict interpretation, the contested provision dispenses entirely with the essential condition of a failure to meet the requirements of professional diligence, as laid down in Article 5(2)(a) of the directive. 109. The Austrian Government argues in this connection that the requirements of professional diligence actually form the inherent basis for the contested provision, since it seeks to protect competition from the dangers of exploitation of the consumer’s gambling compulsion. Compliance with the requirements of professional diligence must be examined by the court in each individual case, depending on the specific conditions of the profession. (84) This argument is to be construed as meaning that the contested national provision is intended to implement that requirement, even if by means of a rectifying interpretation by the court having jurisdiction. 110. However, these arguments in relation to national law are not convincing. The referring court nevertheless makes express reference to the fact that, unlike the case of the abovementioned requirement of a material distortion of behaviour of consumers, (85) the Austrian courts cannot consider whether the fact of announcing, offering or giving a bonus is unfair in principle, because it is contrary to the requirements of professional diligence. (86) The referring court therefore has doubts that a general prohibition of bonuses, in the present versions, may be compatible with Directive 2005/29. – Interim conclusion 111. The statements made by the referring court therefore confirm my opinion that the prohibition of combined offers contained in Paragraph 9a(1)(1) of the UWG does not satisfy the stipulations of the directive with regard to the requirement laid down in Article 5(2)(a) either. There is therefore no conformity between the legal conditions in Article 5(2)(a) and the contested provision. It has also not been proven that there is a different condition in the Austrian rules on fair commercial practices which, for instance, conforms to the legal conditions laid down in Article 5(2)(a). 112. In view of the fact that this is sufficient to conclude that the contested provision is incompatible with Article 5(2) of Directive 2005/29, I do not consider that there is any need to continue the examination on the basis of that provision of the directive. c) Conclusion 113. To sum up, it may be stated that a national provision such as Paragraph 9a(1)(1) of the UWG, in the interpretation attributed to it, which imposes a prohibition in principle on combined offers, without providing for the possibility of taking account of the circumstances of the particular case, is by its nature more restrictive and more stringent than the provisions of Directive 2005/29. 114. In this connection it must be noted that Paragraph 9a(1)(1) of the UWG concerns a sector which is subject to full harmonisation and to which the transitional provisions of Article 3(5) of the directive do not apply. It has also not been demonstrated by either of the parties that the contested national provision is to be classified in one of the fields which are listed in recital 9 in the preamble to the directive. (87) The exception laid down in Article 3(9) is likewise not applicable. 115. The prohibition in principle of combined offers laid down by Paragraph 9a(1)(1) of the UWG, as interpreted above, amounts in effect to extending the list of prohibited commercial practices in Annex I to the directive, which is, however, precisely what the Member States are barred from doing in view of the full maximum harmonisation which goes hand-in-hand with Directive 2005/29 (88). In addition, the Member States are prohibited from making unilateral additions to this list because, under Article 5(5), the list can be modified only by revision of the directive itself, that is to say, by means of the joint decision procedure laid down in Article 251 EC. 116. In view of the above considerations, I conclude that, despite a strict interpretation, a national provision like that contained in Paragraph 9a(1)(1) of the UWG is not consistent with the stipulations of Directive 2005/29. The withdrawal of the Commission proposal for a regulation on sales promotions in the internal market 117. The Austrian Government bases some of its arguments on individual provisions of the Proposal for a regulation concerning sales promotions in the internal market ultimately withdrawn by the Commission. (89) It includes rules on the offering of free gifts, premiums and the chance of taking part in promotional contests and games. The Austrian Government believes that it can conclude from the withdrawal of that proposal that the regulatory scope which would have been covered by the proposal for a regulation concerning sales promotions is still unregulated and is not covered, for example, by Directive 2005/29. 118. I have already made detailed comments on the consequences of the withdrawal of that Commission proposal for the legal treatment of combined offers in my Opinions in VTB-VAB and Galatea (90) and in Plus Warenhandelsgesellschaft. (91) This was in response to the essentially identical arguments put forward by the Belgian and German Governments in those cases. In those Opinions, I stated why, in my view, no conclusions can be drawn, for purposes of the interpretation of Directive 2005/29, from the Commission proposal for a regulation concerning sales promotions in the internal market or from the proposed amendments submitted in the course of the legislative process. 119. The abovementioned proposal concerns Community legislation which ultimately never entered into force and therefore never became part of the Community legal order. It cannot therefore be readily used as an aid to interpretation. This applies especially where the Commission withdrew that proposal of its own volition, as in the case of the abovementioned proposal for a regulation. It must be borne in mind that the Commission has a right of initiative and may therefore withdraw its proposals. Furthermore, those proposals may be subject to numerous alterations by the Council and the Parliament in the course of a legislative process, with the result that they are of only limited utility as aids to interpretation. (92) The final version of such a regulation can therefore only be conjectured. In this respect such a proposal is not likely to create a legitimate expectation. 120. A Member State also cannot successfully rely on protection of legitimate expectations if it played a key role in both legislative processes. 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 Austrian Government played a key role in both legislative processes and was therefore constantly informed of their progress. Therefore it cannot plead, in a legally effective manner, that it was unaware of the course of events in both legislative processes. 121. The Court has stressed the particular responsibility of the governments of the Member States represented within the Council in the implementation of directives. The Court has thus inferred that, as the governments of the Member States participate in the preparatory work on directives, they must be in a position to prepare within the period prescribed the legislative provisions necessary for their implementation. (93) 122. Therefore, by the date of the withdrawal of the Commission’s proposal at the latest, (94) the Austrian Government ought to have examined, if appropriate, how far the scope ratione materiae of Directive 2005/29 would also extend to areas previously covered by the planned regulation. This was obviously necessary, particularly as the directive was originally intended, first, to introduce general subsidiary rules into the Community-law area of consumer protection and, secondly, to bring about full harmonisation of the Member States’ rules concerning unfair commercial practices. (95) As the proposal was withdrawn at a time when the period for implementing the directive was still running, the Austrian legislature ought to have taken those factors into account when adjusting national law. 123. Finally, it should be noted that in VTB-VAB and Galatea the Court did not examine the essentially identical arguments put forward by the Belgian Government, thereby making implicit that it did not concur with that line of argument. This was ultimately confirmed in the judgment in Plus Warenhandelsgesellschaft. (96) 124. This submission must accordingly be rejected. 5. Conclusions 125. In summary, it can be stated that the incompatibility of the contested national provision with the stipulations of Directive 2005/29 is suggested by the fact that that provision, designed as a prohibition in principle, has a regulatory structure which does not allow an assessment of the fairness of the specific commercial practice in the individual case to the same extent as the directive. (97) 126. It must also be stated that the contested national provision – even on the basis of a strict interpretation as advocated by the Austrian courts – cannot be seen as having correctly transposed the provisions of Articles 5(2), (4) and (5) of the directive. This stems from the fact that the legal conditions under national law either do not conform to the requirements of the directive for classification of a commercial practice as unfair or cannot be interpreted consistently with the directive. 127. Because Directive 2005/29 precludes a prohibition of combined offers such as that provided for in Paragraph 9a(1)(1) of the UWG, there is no need to examine the possibility of a breach of fundamental freedoms. (98) 128. Against this background, the answer to the first question must be that the provisions of Directive 2005/29 preclude a national provision which makes it illegal to announce, offer or give bonuses, free of charge, with periodicals and newspapers, and to announce bonuses, free of charge, with other goods or services, apart from exhaustively specified exceptions, without it being necessary in any particular case to consider whether such a commercial practice is misleading, aggressive or otherwise unfair, even where that provision serves not only to protect consumers, but also serves other purposes which are not covered by the material scope of the directive, for example, the maintenance of media diversity or the protection of weaker competitors. 129. Lastly, it should be borne in mind in this connection that – contrary to the apparent assumptions of the referring court (99) – the Court has held (100) that it is not required, at least under Community law, that national courts, where they are hearing proceedings between individuals, disapply a national provision which is not consistent with a directive. C – The second question 130. On a reasonable interpretation, the second question essentially asks the Court to determine whether a particular commercial practice may be regarded as ‘unfair’ within the meaning of Article 5(2) of Directive 2005/29 under circumstances which the referring court evidently takes to exist. Specifically, in its statements, the referring court proceeds from the premise that ‘the chance of taking part in a prize competition, which is acquired with the purchase of a newspaper, is, for at least some of those to whom the offer is addressed, not the only, but the decisive reason for purchasing the newspaper’. This characteristic is relevant first and foremost in clarifying whether the economic behaviour of the average consumer is materially distorted within the meaning of Article 5(2)(b) of the directive in the case at issue. 131. Article 5(2)(b) of the directive makes clear that the key factor is the effect of a particular commercial practice on the behaviour of the average consumer whom it reaches or to whom it is addressed. This provision of the directive not only adopts the method of examination developed by the Court, but refines it by adapting it to situations where the interests of specific groups are concerned. (101) When a particular commercial practice is directed to a particular group of consumers, it is relevant whether that commercial practice materially distorts or is likely to materially distort the economic behaviour of the average member of that group. In carrying out this examination, regard must be had to the perspective of that average consumer, account being taken, among other things, of his expectations and probable reactions. (102) 132. Since the invitation to take part in the competition published by the defendant in the main proceedings in its newspaper clearly appeared in a general newspaper and not, for example, in a sports newspaper, it is for the national court to examine the extent to which that offer might be addressed to a specific readership and to which that second criterion is therefore to be applied. 133. In any event, it must be borne in mind that in order to be able to conclude that a commercial practice is unfair within the meaning of Article 5(2), the criteria in subparagraphs (a) and (b) must be met cumulatively. (103)A failure to meet the requirements of professional diligence would therefore also have to exist in the present case. The concept of ‘professional diligence’ is defined in Article 2(h) of the directive as ‘the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader’s field of activity’. It is for the national court to examine in detail whether such a failure exists in the main proceedings. 134. The answer to the second question must therefore be that the chance of taking part in a prize competition, which is acquired with the purchase of a newspaper, is not an unfair commercial practice within the meaning of Article 5(2) of Directive 2005/29/EC merely because that chance is, for at least some of those to whom the offer is addressed, not the only, but probably the main reason for purchasing the newspaper. VII – Conclusion 135. In the light of the above considerations, I propose that the Court answer the questions referred by the Oberster Gerichtshof as follows: (1) The provisions of 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’) are to be interpreted as precluding a national provision like Paragraph 9a(1)(1) of the UWG which makes it illegal to announce, offer or give bonuses, free of charge, with periodicals and newspapers, and to announce bonuses, free of charge, with other goods or services, apart from exhaustively specified exceptions, without it being necessary in any particular case to consider whether such a commercial practice is misleading, aggressive or otherwise unfair, even where that provision serves not only to protect consumers, but also serves other purposes which are not covered by the material scope of the directive, for example, the maintenance of media diversity or the protection of weaker competitors. (2) The chance of taking part in a prize competition, which is acquired with the purchase of a newspaper, is not an unfair commercial practice within the meaning of Article 5(2) of Directive 2005/29/EC merely because that chance is, for at least some of those to whom the offer is addressed, not the only, but probably the main reason for purchasing the newspaper. 1 – Original language: German. 2 – In accordance with the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007 (OJ 2007, C 306, p. 1), the preliminary ruling procedure is now regulated in Article 267 of the Treaty on the Functioning of the European Union. 3 – 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). 4 – Joined Cases C-261/07 and C-299/07 [2009] ECR I-2949. 5 – Case C-304/08 [2010] ECR I-0000. 6 – Bundesgesetz gegen den unlauteren Wettbewerb 1984 – UWG, BGBl. No 448, amended by the Law of 13 November 2007, BGBl. I No 79/2007. 7 – VTB-VAB and Galatea, cited above in footnote 4, paragraph 52, and Plus Warenhandelsgesellschaft, cited above in footnote 5, paragraph 41. In the case of possible more extensive harmonisation of the law on fair commercial practices and the law on contracts in the European Union, due regard should also be had to the stipulations of the Draft Common Frame of Reference (DCFR), since one of its focuses is the protection of consumers, for example by imposing specific duties to provide information on businesses marketing to consumers as regards the main characteristics of the goods and services acquired (see, for example, II.-3:102 DCFR). These ‘good commercial practices’ are certainly in contrast with the ‘prohibited commercial practices’ listed in Annex I to Directive 2005/29. 8 – The provisions in question are Article 54 et seq. of the Belgian Law of 14 July 1991 on commercial practices and consumer information and protection. 9 – The relevant provisions are Paragraphs 3 and 4(6) of the German Gesetz gegen den unlauteren Wettbewerb (German Law on unfair competition, UWG) (BGBl. I p. 1414), last amended by Article 1 of the First Amending Law of 22 December 2008 (BGBl. I p. 2949). 10 – BGBl. I No 79/2007. 11 – The prohibition of bonuses under Paragraph 9a of the UWG, which was originally governed by the Prämiengesetz (Law on prizes) of 20 June 1929 (BGBl. 227) and later by the Zugabengesetz 1934 (1934 Law on bonuses), was integrated into the UWG by the Wettbewerbs-Deregulierungsgesetz 1992 (1992 Law on deregulation of competition, BGBl. 1992/147). With regard to the history of that provision, see Duursma, D., in: UWG – Kommentar (ed. Maximilian Gumpoldsberger/Peter Baumann), Vienna 2006, Paragraph 9a, paragraph 1, p. 276, and Wiltschek, L., UWG – Kommentar, 2nd edition, Vienna 2007, Paragraph 9a, p. 44. 12 – See, inter alia, p. 9 and 10 of the order for reference. 13 – See, inter alia, Case 6/64 Costa [1964] ECR 585; 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. 14 – VTB-VAB and Galatea, cited above in footnote 4, paragraph 49, and PlusWarenhandelsgesellschaft, cited above in footnote 5, paragraphs 36 and 39. See Keirsbilck, B., ‘Towards a single regulatory framework of unfair commercial practices?’, European Business Law Review, 4/2009, p. 505, in whose view Directive 2005/29 is distinguished by its very broad scope. 15 – See my Opinion in VTB-VAB and Galatea (judgment cited above in footnote 4, points 68 to 70). 16 – VTB-VAB and Galatea, cited in footnote 4, paragraphs 48 and 50. In connection with a promotional campaign which enabled consumers to take part free of charge in a lottery subject to their purchasing a certain quantity of goods or services, see PlusWarenhandelsgesellschaft, cited above in footnote 5, paragraph 37. 17 – See also Heidinger, R., ‘Zugabenverbot, quo vadis?’, Medien und Recht, 1/2009, p. 45, according to whom Directive 2005/29 applies because the prohibition of bonuses under Paragraph 9a of the UWG is to be regarded as regulation of unfair commercial practices vis-à-vis consumers. 18 – See also Hoeren, T., ‘Das neue UWG – der Regierungsentwurf im Überblick’, Betriebs-Berater, 2008, p. 1183; 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. 166. 19 – See also Koppensteiner, H.-G., ‘Grundfragen des UWG im Lichte der Richtlinie über unlautere Geschäftspraktiken’, Wirtschaftsrechtliche Blätter, 2006, Vol. 12, p. 558, in whose view it would be wrong to deny that Directive 2005/29 has any significance in relations between businesses. The author bases his arguments on both recitals 6 and 8, according to which the economic interests of legitimate businesses are indirectly protected, and Article 11(1) of the directive, under which the Member States are required to allow competitors the right to bring proceedings in the case of conduct which is incompatible with the directive. The same author, ‘Das UWG nach der Novelle 2007’, Die Europäisierung des Kartell- und Lauterkeitsrechts, Tübingen 2009, p. 86, footnote 8, points out that competitors are also indirectly protected by Directive 2005/29. 20 – See points 35 and 64 of my Opinion in PlusWarenhandelsgesellschaft. 21 – Marsland, V., ‘Unfair Commercial Practices: Stamping out Misleading Packaging’, The regulation of unfair commercial practices under EC Directive 2005/29 – New rules and new techniques, Norfolk 2007, p. 194, rightly points out that despite its consumer protection orientation, Directive 2005/29 recognises the fact that the interests of consumers and competitors are similar with regard to unfair commercial practices and that it is in the common interest of consumers and competitors that all traders adhere to the rules. Büllesbach, E., Auslegung der irreführenden Geschäftspraktiken des Anhangs I der Richtlinie 2005/29/EG über unlautere Geschäftspraktiken, Munich 2008, p. 16, states that many commercial practices affect both the interests of consumers and those of competitors. In order to reach appropriate conclusions in assessing commercial actions from the point of view of the rules on fair practices, it is therefore necessary to adopt a multi-dimensional approach, taking into account uniformly the interests of all those concerned. The fact that protection of competitors and consumers is generally ‘two sides of the same coin’ can be seen from the example of misleading advertising, which affects not only the economic interests of consumers, but also those of competitors if their business prospects would be affected. The same holds for denigration, which causes harm to the wrongly criticised party and distorts the decision-making basis for the misinformed consumer. Bargelli, E., ‘L’àmbito di applicazione della direttiva 2005/29/CE: La nozione di pratica commerciale’, Le pratiche commerciali sleali tra imprese e consumatori, Turin 2007, p. 80, points out the difficulty of distinguishing between the interests of consumers and competitors. In the view of Schuhmacher, W., ‘The Unfair Commercial Practices Directive’, Law Against Unfair Competition – Towards a New Paradigm in Europe (ed. Reto M. Hilty/Frauke Henning-Bodewig), Berlin/Heidelberg 2007, p. 132, Directive 2005/29 clearly shows that there are situations in competition law where it is not possible to distinguish protection of competitors from protection of consumers. 22 – Gamerith, H., ‘Richtlinie über unlautere Geschäftspraktiken: bisherige rechtspolitische Überlegungen zu einer Neugestaltung des österreichischen UWG’, Lauterkeitsrecht im Umbruch, 2005, p. 157, even takes the view that Directive 2005/29 does not really distinguish between the interests of consumers and competitors within its regulatory scope, but contains an ‘incomplete B2B + B2C system’, which suggests that the directive has been transposed in the Austrian UWG. 23 – See also Kessler, J., ‘Lauterkeitsschutz und Wettbewerbsordnung – Zur Umsetzung der Richtlinie 2005/29/EG über unlautere Geschäftspraktiken in Deutschland und Österreich’, Wettbewerb in Recht und Praxis, 2007, Vol. 7, p. 716. See also Falce, V./Ghidini, G., ‘The new regime on unfair commercial practices at the intersection of consumer protection’, Competition law and unfair competition, Antitrust between EC law and national law, 2009, p. 374, who state that with Directive 2005/29 the Community legislature takes the position that only free competition in the internal market can guarantee decision-making freedom for consumers. 24 – See also Gamerith, H., cited above in footnote 22, p. 157, in whose opinion applications for injunctions made by affected competitors against competing undertakings acting unfairly increase consumer protection where they concern prohibitions directed against unfair influence on the consumer’s decision-making freedom through deception, surprise tactics, enticement, pressurisation etc. 25 – PlusWarenhandelsgesellschaft, cited above in footnote 5, paragraph 39. See Micklitz, H.-W., ‘Full Harmonization of Unfair Commercial Practices Under Directive 2005/29’, International Review of Intellectual Property and Competition Law, 2009, Vol. 4, p. 373, in whose view Directive 2009/25 is applicable to B2B relationships where two conditions are met: the commercial practice in question affects directly the interests of consumers and indirectly the interests of competitors. The author fears that this restriction of the scope of the directive could open up new defence strategies. For example, undertakings might be tempted to claim that their commercial practices affect only B2B relationships. 26 – German: ‘lediglich’; Danish: ‘udelukkende’; English: ‘only’; French: ‘uniquement’; Italian: ‘unicamente’; Dutch: ‘alleen’; Portuguese: ‘apenas’; Slovenian: ‘samo’; Spanish: ‘sólo’. 27 – See p. 10 to 12 of the order for reference. 28 – See p. 4 and 5 of the observations submitted by the Austrian Government. 29 – Case C‑368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I‑3689. 30 – See p. 10 to 12 of the order for reference. 31 – See paragraph 11, p. 4 of the observations submitted by the Austrian Government. 32 – In this respect there is a similarity with the arguments put forward by the German Government in PlusWarenhandelsgesellschaft, which concerned the compatibility of a national provision (Paragraph 4(6) of the German UWG) which prohibited combined offers in connection with prize competitions or lotteries. This prohibition was based primarily on considerations of consumer protection. With regard to the arguments put forward by the German Government in that case, see my Opinion of 3 September 2009 in that case, in particular points 93 and 107. 33 – Case C‑58/98 Corsten [2000] ECR I‑7919, paragraph 24, and Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, paragraph 42. 34 – Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 10; Case C‑153/02 Neri [2003] ECR I‑3555, paragraphs 34 and 35; Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri, cited above in footnote 33, paragraph 42; and Case C‑267/03 Lindberg [2005] ECR I‑3247, paragraphs 41 and 42. 35 – In Case 244/78 Union Laitière Normande [1979] ECR 2663, paragraph 5, the Court stated that whilst Article 234 EC does not permit the Court to evaluate the grounds for making the reference, the need to afford a helpful interpretation of Community law may make it essential to define the legal context in which the interpretation requested should be placed. In the view of Lenaerts, K./Arts, A./Maselis, I., Procedural Law of the European Union, 2nd edition, p. 188, section 6-021, there is nothing to prevent the Court setting out its understanding of the facts in the main proceedings and of certain aspects of national law as the basis for a helpful interpretation of the applicable Community legislation and principles of Community law. 36 – In the view of Advocate General Ruiz-Jarabo Colomer, ‘La función del Abogado del Tribunal de Justicia de las Comunidades Europeas’, Problèmes d’interprétation, Brussels 2004, p. 334 et seq., the Opinion should be used by the judges as the basis for their deliberations. As a rule, they should give an answer to all legal questions arising in the proceedings, with an extensive examination of the previous case-law of the Court of Justice. The Advocate General also stresses the growing importance of legal literature for the examination of those legal questions. 37 – In the ‘Erläuterungen zur Regierungsvorlage für ein Bundesgesetz, mit dem das Bundesgesetz gegen den unlauteren Wettbewerb 1984 – UWG geändert wird (UWG-Novelle 2007)’, published in Recht und Wettbewerb, 53rd year, No 170, December 2007, p. 13, it is stated: ‘As in the applicable UWG, the proposal essentially regulates the B2B sector no differently from the B2C sector, as it is not possible to separate protection of competitors and protection of consumers.’ 38 – In the view of Prunbauer, M., ‘Kommentar zum Vorschlag für eine EU-Richtlinie über unlautere Geschäftspraktiken im binnenmarkt-internen Geschäftsverkehr zwischen Unternehmen und Verbrauchern – ein missglückter Ansatz der Harmonisierung des Lauterkeitsrechts in der EU’, Recht und Wettbewerb, 49th year, No 161, September 2003, p. 3, the UWG essentially concerns not only consumer aspects of competition behaviour, but also aspects relating to competitors and the general public. An advertising measure cannot be seen or assessed simply from one angle in relation to consumers. The protection of competitors and of the public interest in effective competition also serve at least indirectly to protect consumers, since this ensures the effectiveness of competition, which is also in the interests of consumers. The author concludes that a competitive act cannot be separated into a ‘consumer competition part’ and a ‘trader competition part’ either in the reality of economic life or in doctrine. According to Wiebe, A., ‘Umsetzung der Geschäftspraktikenrichtlinie und Perspektiven für eine UWG-Reform’, Juristische Blätter, 129th year, Vol. 2, February 2007, p. 71, it has long been undisputed in the case of Austria and Germany that the UWG serves to protect competitors, consumers and the public interest, as is explicitly laid down in Paragraph 1 of the new German UWG. The inherent interconnection of the protective purpose actually makes it essentially impossible to separate legal regulation between B2B and B2C transactions. See also Büllesbach, E., cited above in footnote 21, p. 15, who refers to the triad of protective purpose (consumers, competitors, general public) which forms the basis for the German and Austrian rules on fair trading practices. Lettner, H., ‘Die Umsetzung der EU-Richtlinie über unlautere Geschäftspraktiken – Eine Bilanz des UWG-Neu in Österreich und Deutschland’, European Law Reporter, 2009, No 9, p. 313, also points out that the Austrian UWG seeks, by and large, to protect the interests of traders, the interests of the general public and the interests of consumers. 39 – For example, Duursma-Kepplinger, D., cited above in footnote 11, points out that Paragraph 9a of the UWG also serves to protect consumers (Paragraph 16, section 24, p. 808). The purpose of the statutory restriction of bonuses is, inter alia, to protect buyers against non-factual and misleading advertising and to prevent competitors from outbidding one another with (further) ancillary benefits (Paragraph 9a, section 2, p. 276). The author takes the view that the actual objective of the UWG is to offer preventive protection of general consumer interests in order safeguard competition against unfair practices (Paragraph 16, section 26, p. 810). According to Horak, M., ‘Naht das Ende des Zugabenverbots?’, Ecolex, 2008, p. 1138, the purpose of the prohibition of bonuses under Paragraph 9a of the UWG is recognised as principally consumer protection. The author refers to the judgment of the Oberster Gerichtshof cited in footnote 40 of this Opinion. See also Kucsko, G., ‘Zur rechtspolitischen Begründung des Zugabenverbots’, Ecolex, 1992, p. 709, who traces the legislative history of the prohibition of bonuses in Austria from the beginning of the 20th century. The author points out that the primary purpose of the Austrian ‘prohibition of bonuses’ since it came into being is to prevent the purchasing decision of consumers being influenced non-objectively by bonuses and the real price of the main item being hidden by the bonuses, so the customer is misled. Furthermore, it is intended to prevent competing traders outbidding one another. 40 – See judgment of the Oberster Gerichtshof of 9 March 1999 Fini’s Feinstes (Ref. 4 Ob 28/99t). It states: ‘The purpose of the prohibition of bonuses is recognised as principally consumer protection. The judgement of consumers – for example in the case of a chance to take part in a competition – is not clouded by the human pleasure in gambling and the desire to win. The decision on the purchase will be taken having regard to the quality and the price competitiveness of a product and on the basis of a proper comparison of the goods, but not more or less indiscriminately in order to win the prize which has been offered as bait.’ 41 – See Horak, M., ‘Zugabenverbot gemeinschaftsrechtswidrig?’, Ecolex, 2009/123, p. 341, in whose opinion the first question hinges on whether a per se prohibition of bonuses, which is intended to protect both consumers and traders, is compatible with Directive 2005/29. In the author’s view, such a per se prohibition is contrary to Community law if its scope is not sharply defined and can be restricted to offers which are addressed solely to traders and do not affect consumer interests. Those conditions are not satisfied in the case of Paragraph 9a(1)(1) of the UWG. In the view of Lettner, H., cited above in footnote 38, No 9, p. 317, the fact that the prohibition of combined offers in Paragraph 9a(1)(1) of the UWG serves not only to protect consumers, but also other purposes which are not covered by the scope ratione materiae of the directive, such as the maintenance of media diversity or the protection of weaker competitors, cannot justify the maintenance of a per se prohibition for the B2C sector in addition to the black lists. Both authors thus assume that the contested national provision falls within the scope of Directive 2005/29. 42 – See point 33 of this Opinion. 43 – VTB-VAB and Galatea, cited above in footnote 4, paragraph 52. 44 – The directives referred to in Article 3(5) that contain 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 of 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); 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). 45 – The same approach is taken by De Cristofaro, G., ‘La direttiva 2005/29/CE – Contenuti, rationes, caratteristiche’, Le pratiche commerciali sleali tra imprese e consumatori, Turin 2007, p. 12, and Henning-Bodewig, F., ‘Die Richtlinie 2005/29/EG über unlautere Geschäftspraktiken’, Gewerblicher Rechtsschutz und Urheberrecht Internationaler Teil, 2005, Vol. 8/9, p. 631. 46 – 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. 47 – The implementation of directives forms part of a two-stage legislative process, the second stage being situated at the level of national law. Substantive implementation at the level of national law gives effect to the law contained in a directive (see, on this point, Vcelouch, P., Kommentar zu EU- und EG-Vertrag (ed. Heinz Mayer), Vienna 2004, Article 249, sections 48 and 50, p. 17 and 18). 48 – Case C‑131/88 Commission v Germany [1991] ECR I‑825, paragraph 6; Case C‑96/95 Commission v Germany [1997] ECR I‑1653, paragraph 35; Case C‑49/00 Commission v Italy [2001] ECR I‑8575, paragraphs 21 and 22; Case C‑410/03 Commission v Italy [2005] ECR I‑3507, paragraph 60. This is correctly pointed out by Seichter, D., ‘Der Umsetzungsbedarf der Richtlinie über unlautere Geschäftspraktiken’, Wettbewerb in Recht und Praxis, 2005, p. 1088, in connection with the need to implement Directive 2005/29 in German law. 49 – See, to that effect, Ruffert, M., in Calliess/Ruffert (ed.), Kommentar zu EUV/EGV, 3rd edition, 2007, Article 249, paragraph 49, p. 2135. According to settled case-law, the implementation of a directive must ensure its full application: see, inter alia Case C‑217/97 Commission v Germany [1999] ECR I‑5087, paragraph 31; Case C‑214/98 Commission v Greece [2000] ECR I‑9601, paragraph 49; and Case C‑62/00 Marks & Spencer [2002] ECR I‑6325, paragraph 26. 50 – See p. 10 of the order for reference. 51 – On p. 8 of the order for reference the referring court cites the judgments of the Oberster Gerichtshof of 20 October 1992 in Welt des Wohnens (Ref. 4 Ob 87/92), of 30 January 2008 in ORF-Teletext (Ref. 3 Ob 273/07d), and of 14 February 2008 (Ref. 4 Ob 17/08s). 52 – On p. 8 of the order for reference the referring court cites the judgment in Welt des Wohnens, cited above in footnote 51. 53 – On p. 8 of the order for reference the referring court cites the judgment of the Oberster Gerichtshof of 14 December 1999 in Tipp des Tages III (Ref. 4 Ob 290/99x). 54 – See also p. 4 of the pleading lodged by the applicant in the main proceedings. 55 – See Horak, M., cited above in footnote 39, p. 1138, who compares Paragraph 9a of the UWG with so-called ‘per se prohibitions’. Under per se prohibitions certain abstractly defined commercial practices are prohibited in principle without a court being able to examine the effects on consumers or competitors in the individual case. In order to create an appropriate balance, such prohibitions are generally accompanied by a list of exceptions. In the view of the author, Paragraph 9a of the UWG, with a prohibition in principle of bonuses in subparagraph 1 and a list of exceptions in paragraph 2, follows that system. Heidinger, R., cited above in footnote 17, p. 45, takes the view that Paragraph 9a of the UWG is designed as a per se prohibition under which certain commercial practices are prohibited without the effects on consumers having to be examined in the individual case. 56 – See my Opinion in VTB-VAB and Galatea, cited above in footnote 4, point 81. Along the same lines see Micklitz, H.-W., cited above in footnote 25, p. 374. 57 – 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. 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 in footnote 45, 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. 58 – See Bakardjieva Engelbrekt, A., ‘An End to Fragmentation? The Unfair Commercial Practices Directive from the Perspective of the New Member States from Central and Eastern Europe’, The regulation of unfair commercial practices under EC Directive 2005/29 – New rules and new techniques, Norfolk 2007, p. 47 et seq., who underlines the harmonising effect of Directive 2005/29, the aim of which is to overcome the considerable differences between the Member States’ rules on fair practices which existed before it entered into force. See also Bargelli, E., cited above in footnote 21, p. 79. Weatherill, S., ‘Who is the “Average Consumer”, The regulation of unfair commercial practices under EC Directive 2005/29 – New rules and new techniques’, Norfolk 2007, p. 137, describes the approach adopted by Directive 2005/29 as deregulation with simultaneous regulation. Harmonisation of national laws deregulates the market by eliminating legislative diversity in the Member States in favour of a common regime. In the view of Falce, V./Ghidini, G., cited above in footnote 23, p. 372, Directive 2005/29 seeks to restore the balance between, on the one hand, competition within the internal market without borders and, on the other, consumer protection. 59 – See also Heidinger, R., cited above in footnote 17, p. 46. 60 – Cited above in footnote 4, paragraphs 64 and 65. 61 – Cited above in footnote 20, point 82. 62 – Lenaerts, K./Arts, D./Maselis, I., cited above in footnote 35, paragraph 5‑056, p. 162, point out that the scope of national laws, regulations and administrative provisions must be assessed in the light of how they are interpreted by their national courts. The interpretation of national law in conformity with Community law was the subject of a reference for a preliminary ruling by the German Bundesgerichtshof in Case C‑42/95 Siemens v Nold [1996] ECR I‑6017, and by the Belgian Hof van beroep te Gent in Case C‑205/07 Gysbrechts [2008] I‑9947. 63 – See my Opinion of 4 September 2008 in Case C‑338/06 Commission v Spain [2008] ECR I‑0000, point 89. 64 – Case 14/83 von Colson and Kamann v Nordrhein-Westfalen [1984] ECR 1891, paragraph 26; Case 79/83 Harz v Deutsche Tradax [1984] ECR 1921, paragraph 26; Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 53; Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 12; Case 31/87 Beentjes [1988] ECR 4635, paragraph 39; Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph 24; Case C‑131/97 Carbonari [1999] ECR I‑1103, paragraph 48; Case 365/98 Brinkmann Tabakfabriken [2000] ECR I‑4619, paragraph 40; Joined Cases C-240/98 to C-244/98 Océano Grupo [2000] ECR I‑4941, paragraph 30; Case C‑456/98 Centrosteel [2000] ECR I‑6007, paragraph 16; Case C‑371/97 Gozza [2000] ECR I‑7881, paragraph 37. See also Case C‑106/89 Marleasing [1990] ECR I‑4135, paragraph 89; Case C‑160/01 Mau [2003] ECR I‑4791, paragraph 36; Case C‑462/99 Connect Austria [2003] ECR I‑5197, paragraph 38; Case C‑408/01 Adidas-Salomon and Adidas Benelux [2003] ECR I‑12537, paragraph 21; and Joined Cases C‑397/01 to C‑403/01 Pfeiffer [2004] ECR I‑8835, paragraph 113. See Schweitzer, M./Hummer, W./Obwexer, W., Europarecht, Vienna 2007, p. 82 et seq. 65 – Case 14/83 von Colson and Kamann v Nordrhein-Westfalen, cited above in footnote 61, paragraph 28, and Case 79/83 Harz v Deutsche Tradax, cited above in footnote 61, paragraph 28. 66 – In the view of Streinz, R., Europarecht, 8th edition, Heidelberg 2008, p. 161, paragraph 456, the duty to give an interpretation in conformity with the directive finds its limits in the ability to interpret national law. Where national courts also have the power to develop national law further, they must, where appropriate, further develop national law in conformity with the directive. 67 – With regard to the regulatory purpose of this prohibition, see Büllesbach, E., cited above in footnote 21, p. 114. If a trader claimed that a product could increase chances of winning a game of chance, it is suggested to the consumer that the winning of the prize can be influenced in his favour by purchasing the product. However, games of chance are characterised by the fact that the winning of a prize is determined by chance. Because of this random element, it is fundamentally inconceivable that the winning of the prize can be influenced. The consumer is therefore deceived as to the fitness for purpose of the product. Because the claim is linked indirectly to the human pleasure in gambling, consumers are particularly vulnerable, since the rationality of their decision may be severely affected by their hope for an easy win. 68 – See point 85 of my Opinion in PlusWarenhandelsgesellschaft, cited above in footnote 20. 69 – See paragraph 55, p. 21 of the observations submitted by the Austrian Government. 70 – Case 286/81 Oosthoek’s Uitgeversmaatschappij [1982] ECR 4575, paragraph 18. 71 – See, to that effect, Abbamonte, G., cited above in footnote 57, p. 21; Massaguer, J., El nuevo derecho contra la competencia desleal – La Directiva 2005/29/CE sobre las Prácticas Comerciales Desleales, Cizur Menor 2006, p. 58; Maione, N., ‘Le pratiche commerciali sleali nella direttiva 2005/29/CE’, Lezioni di diritto privato europeo, 2007, p. 1068. 72 – See p. 10 of the order for reference. 73 – But not the consumer’s economic interest. According to Abbamonte, G., cited above in footnote 57, p. 23, this provision proceeds from the basic assumption that unfair commercial practices as a rule confuse the consumer’s preferences because they interfere with his decision-making freedom or capacity. As a result, consumers may buy goods which they do not need or which they would otherwise (without the interference) regard as inferior. However, Article 5(2)(b) of Directive 2005/29 does not require financial damage on the part of the consumer. In the writer’s opinion, such a requirement would have been unreasonable because it would significantly have reduced the level of consumer protection within the European Union. 74 – See paragraph 51, p. 20 of the observations submitted by the Austrian Government. 75 – Cited above in footnote 20, point 93. 76 – See points 76 to 78 of this Opinion. 77 – See with regard to the model of the consumer in the Court’s case-law, Case C‑373/90 X [1992] ECR I‑131, paragraphs 15 and 16; Case C‑210/96 Gut Springenheide and Tusky [1998] ECR I‑4657, paragraph 31; Joined Cases C‑108/97 and C‑109/97 Windsurfing Chiemsee [1999] ECR I‑2779, paragraph 29; Case C‑220/98 Estée Lauder [2000] ECR I‑117, paragraph 27; Case C‑30/99 Commission v Ireland [2001] ECR I‑4619, paragraph 32; Case C‑99/01 Linhart and Biffl [2002] ECR I‑9375, paragraph 31; Case C‑44/01 Pippig Augenoptik [2003] ECR I‑3095, paragraph 55; Case C‑363/99 Koninklijke KPN Nederland [2004] ECR I‑1619, paragraph 77; Case C‑218/01 Henkel [2004] ECR I‑1725, paragraph 50; Case C‑421/04 Matratzen Concord [2006] ECR I‑2303, paragraph 24; and Case C‑356/04 Lidl Belgium [2006] ECR I‑8501, paragraph 78. 78 – Abbamonte, G., cited above in footnote 57, p. 25, points out that with Directive 2005/29 the Community legislature now codifies this method which has not been applied by the courts of many Member States. The writer takes the view that this minimises the danger of different assessments of the same commercial practices within the European Union and increases legal certainty. See also Wiebe, A., cited above in footnote 38, p. 75, and Micklitz, H. W., ‘Das Konzept der Lauterkeit in der Richtlinie 2005/29/EC’, Droit de la consommation/Konsumentenrecht/Consumer law, Liber amicorum Bernd Stauder, Basel 2006, p. 311. Weatherill, S., ‘Who is the “Average Consumer”, The regulation of unfair commercial practices under EC Directive 2005/29 – New rules and new techniques’, Norfolk 2007, p. 135, states that employing the notion of an average consumer may appear artificial in view of different consumer behaviours, but is essential for an effective harmonised regulatory system. 79 – Lecheler, H., ‘Verbraucherschutz’, in: Handbuch des EU-Wirtschaftsrechts (ed. Manfred Dauses), Vol. 2, Munich 2004, H.V, paragraph 27, p. 11, interprets the Court’s case-law (cited in footnote 77 of this Opinion) to the effect that the assumption is of a consumer acting reasonably and circumspectly in principle, who is able to orient himself and is capable of self‑determination. 80 – For example, Maione, N., cited above in footnote 71, p. 1068, points out that, according to the will of the Community legislature, it is not intended to prohibit any commercial practice which influences the purchasing behaviour of the consumer, but only practices which do not meet the requirements of professional diligence by impairing the decision-making freedom of the consumer. 81 – See p. 10 of the observations of the defendant in the main proceedings. 82 – See also Kucsko, G., cited above in footnote 37, p. 709, who doubts that the arguments underlying the background materials for the 1929 Prämiengesetz (to which the prohibition of bonuses in Paragraph 9a(1)(1) of the UWG ultimately dates back) still have significance nowadays. The consumer today is much more circumspect and informed. Advertising has also changed significantly in the last few decades. The consumer is exposed, and accustomed, to a much greater extent to being courted by – not always factual – advertising. The ‘image’ of certain brands is loaded with associations which no longer have anything to do with the actual characteristics of the product. On the other hand, the critical judgement of consumers has been sharpened through the regular publication of objective comparison tests, through certification marks, through critical consumer magazines etc., not only for the products tested, but in general. The consumer today is therefore much more capable of assessing himself whether he wishes to be enticed on the basis of non-objective considerations or whether the price for the main item is too high for him. In the case of a bonus, he also receives more than an intangible ‘image’. He receives a real product or service. The patronising argument of seeking to protect consumers is no longer convincing. 83 – Heidinger, R., cited above in footnote 17, p. 46, and Wittmann, H., ‘EuGH: Zugabenverbot vor dem Fall?’, Medien und Recht, 6/2008, p. 284, take up the reservations expressed by the referring court in the order for reference. They point out that the image of an empowered consumer underlying Article 5(2) of Directive 2005/29 would be an argument against assuming an unfair practice in the main proceedings. Such extensive consumer protection runs counter to current image of an empowered consumer who must be free in principle to take his economic decisions on the basis of non-objective considerations. 84 – See paragraph 47, p. 19 of the observations submitted by the Austrian Government. 85 – See point 95 of this Opinion. 86 – See p. 10 of the order for reference. 87 – As Schuhmacher, W., cited above in footnote 21, p. 131, rightly observes, recital 9 of the preamble to Directive 2005/29 lists certain barriers to full harmonisation. Nevertheless, neither of the parties in the present preliminary ruling proceedings has explicitly demonstrated that those barriers are applicable to the main proceedings. This does not appear to be the case on an objective analysis either. 88 – Abbamonte, G., cited above in footnote 57, p. 21, points out that the Member States may not themselves add to the exhaustive list of prohibited commercial practices in Annex I to Directive 2005/29. If they were allowed to do so, this would have the result of circumventing the maximum harmonisation which is the aim of the directive, which would frustrate the objective of legal certainty. Keirsbilck, B., cited above in footnote 14, p. 522, describes the list of prohibited commercial practices contained in Annex I as exhaustive. 89 – Commission Proposal for a European Parliament and Council Regulation concerning sales promotions in the Internal Market, 15 January 2002, COM(2001) 546 final. 90 – Cited above in footnote 15, points 90 to 94. 91 – Cited above in footnote 20, points 106 to 111. 92 – See point 83 of my Opinion of 29 October 2009 in the pending Case C‑484/08 Caja de Ahorros y Monte de Piedad de Madrid v Ausbanc. See Riesenhuber, K., ‘Die Auslegung’, in: Europäische Methodenlehre, Berlin 2006, p. 257, paragraph 31. The author writes that historical interpretation in European private law, which involves the historical background and legislative history, plays a central role. If the purpose of interpretation is to ascertain the legislature’s intention, it is first necessary to determine whose intention is to be taken into account. The democratically legitimated legislature consists only of those legislative bodies the assent of which attaches to the legal measure in any specific case. On the other hand, various bodies have only to be heard and even the Commission has only a right of initiative and the option of withdrawing proposals; its proposals may be altered at will in the legislative process. If the Commission’s proposals or intentions are not adopted, a contrary inference at the most may, but need not necessarily, be drawn from this. 93 – 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. 94 – The Commission’s decision to withdraw its proposal for the regulation was published in OJ 2006 C 64, p. 3. However, the Commission had already announced this decision in its communication of 27 September 2005 entitled ‘Outcome of the screening of legislative proposals pending before the Legislator’, COM(2005) 462 final, p. 10. 95 – That is also the opinion of Stuyck, J., cited above in footnote 18, p. 161, who voices the suspicion that several Member States obviously did not realise that the provisions of the withdrawn proposal for a regulation, which concerned the relationship between traders and consumers, were ultimately taken up again by Directive 2005/29 (in view of the objective of full harmonisation). 96 – Cited above in footnote 5, paragraph 33. 97 – See points 76 to 79 of this Opinion. 98 – VTB-VAB and Galatea, cited above in footnote 4, paragraph 67. 99 – See point 2.2 on p. 13 of the order for reference. The referring court takes the view that, should the Court of Justice reply to the first question in the affirmative, Paragraph 9a(1)(1) of the UWG would serve no purpose. 100 – With regard to the horizontal direct effect of directives, see Case C‑106/89 Marleasing, cited above in footnote 64, paragraph 6; Case C‑91/92 Faccini Dori, cited above in footnote 64, paragraph 24 et seq.; Case C‑443/93 Unilever Italia [2000] ECR I‑7535, paragraph 50. With regard to the possibility of State liability where national provisions are not interpreted in a manner compatible with the directive, see Joined Cases C‑178/94, C‑179/94 and C‑188/94 to C‑190/94 Dillenkofer and Others [1996] ECR I‑4845; Case C‑111/97 EvoBus Austria [1998] ECR I‑5411, paragraphs 27 and 28; and Case C‑81/98 Alcatel Austria [1999] ECR I‑7671, paragraphs 49 and 50. 101 – See also Abbamonte, G., cited above in footnote 57, p. 25, who mentions a refinement through an adaptation of that method of examination where the interests of specific groups are concerned. 102 – Abbamonte, G., cited above in footnote 57, p. 25, gives examples of the application of that provision. When a commercial practice is directed to a particular group of consumers, such as children or rocket scientists, regard must be had to the perspective of an average member of that group. In the case of toy advertising in connection with a children’s programme, regard will be had, in the view of the author, to the expectations and probable reactions of an average child in the target group and such expectations and reactions which are typical of an exceptionally immature child must be disregarded. 103 – See point 93 of this Opinion.