Order — ECLI:EU:C:2013:154
Date: 2013-03-07
Language of the case: Dutch
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Order of the Court (Sixth Chamber), 7 March 2013 1. Questions referred for a preliminary ruling — Question to which the answer may be clearly deduced from the Court’s existing case-law — Application of Article 99 of the Rules of Procedure (Rules of Procedure of the Court of Justice, Art. 99) 2. Approximation of laws — Unfair business-to-consumer commercial practices — Directive 2005/29 — Scope — Practices encouraging consumers to make purchases — Included (European Parliament and Council Directive 2005/29, Art. 2(d)) 3. Approximation of laws — Unfair business-to-consumer commercial practices — Directive 2005/29 — National legislation laying down a general prohibition of offering for sale or selling goods at a loss — Not permissible — Condition (European Parliament and Council Directive 2005/29) 1. See the text of the decision. (see para. 15) 2. See the text of the decision. (see paras 21, 22) 3. Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market must be interpreted as precluding a national provision which provides for a general prohibition of offering for sale or selling at a loss in so far as that provision pursues objectives relating to consumer protection. Since Directive 2005/29 fully harmonises the rules relating to unfair business‑to‑consumer commercial practices, Member States may not adopt stricter rules than those provided for in the directive, as expressly provided for in Article 4 thereof, even in order to achieve a higher level of consumer protection. That directive establishes, in its Annex I, an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) thereof, are regarded as unfair ‘in all circumstances’. Consequently, as recital 17 in the preamble to that directive expressly states, only those commercial practices can be deemed to be unfair without a case‑by‑case assessment against the provisions of Articles 5 to 9 of that directive. The practices of offering for sale or selling goods at a loss do not appear in Annex I to Directive 2005/29. Therefore, they cannot be prohibited in all circumstances, but can be prohibited only following a specific assessment allowing the unfairness of those practices to be established. (see paras 24, 28, 29, 31, operative part)