Opinion of the Advocate General — ECLI:EU:C:2021:520
Date: 2021-06-24
Language of the case: German
Subject matter: Right of establishment;Consumer protection;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
7 August 2020 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
25 June 2020 
Defendant and appellant on a point of law: 
Peek & Cloppenburg KG, Düsseldorf 
Applicant and respondent on a point of law: 
Peek & Cloppenburg KG, Hamburg 
  
Subject matter of the main proceedings 
Action (principally) for an order prohibiting the defendant, in the course of 
competition, from having advertisements published without clearly identifying 
them as an ‘advertisement’. 
Subject matter and legal basis of the request 
Interpretation of the first sentence of point 11 of Annex I to Directive 
2005/29/EC; 
Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Is there a ‘payment’ for product promotion within the meaning of the first 
sentence of point 11 of Annex I to Directive 2005/29/EC only in the case 
where monetary consideration is provided for the use of editorial content in 
EN 
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the media to promote a product, or does the term ‘payment’ cover every kind 
of consideration, irrespective of whether this consists of money, goods, 
services or assets of any other kind? 
2. Does the first sentence of point 11 of Annex I to Directive 2005/29/EC 
presuppose that the trader provides the media operator with a non-cash 
benefit as consideration for the use of editorial content and, if so, must such 
consideration also be assumed to be present in the case where the media 
operator reports on an advertisement organised in conjunction with a trader, 
where that trader has made image rights available to the media operator for 
the purposes of that report, both undertakings have contributed towards the 
costs and effort associated with that advertisement and the advertisement 
serves to promote sales of the products of both undertakings? 
Provisions of EU law cited 
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’), first sentence of point 11 of Annex I 
Provisions of national law cited 
Gesetz gegen den unlauteren Wettbewerb (Law against unfair competition; ‘the 
UWG’), Paragraph 3(3) in conjunction with point 11 of the annex to 
Paragraph 3(3) 
These provide that a business-to-consumer commercial practice whereby the use 
of editorial content to promote sales is financed by an operator and that 
connection is not clearly identifiable from that content or from the way in which it 
is visually or acoustically presented (advertorial) is always illegal. Those 
provisions serve to transpose the first sentence of Article 5(5) of, in conjunction 
with the first sentence of point 11 of Annex I to, Directive 2005/29/EC. 
Brief presentation of the facts and procedure 
1 The parties are two legally and economically separate and independent 
undertakings both of which are active in the retail sale of clothing and pursue this 
business through various branches under the trade name ‘Peek & Cloppenburg’. 
Between the two parties there is an agreement whereby the territory of the Federal 
Republic of Germany is divided into two economic areas (‘NORTH’ and 
‘SOUTH’), with only one of the parties operating clothing outlets in each 
PEEK & CLOPPENBURG 
 
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economic area at any one time. The parties advertise their clothing outlets 
independently and separately. 
2 At issue is a nationwide advertisement by the defendant that was published in the 
fashion magazine GRAZIA in March 2011. On a double-page spread of that 
magazine carrying the heading ‘LESERAKTION’ (reader offer), female readers 
were invited to ‘an exclusive late-night shopping event’, namely the ‘GRAZIA 
StyleNight by Peek & Cloppenburg’. That double page spread includes the 
following text: ‘The night for all GRAZIA Girls: Browse around the fashion 
temple with us after closing! Includes sparkling wine and a personal stylist. How 
to become a V.I.S. (Very Important Shopper)? Register right away!’. ‘StyleNight’ 
events enabled visitors to shop after closing time and to receive fashion, hair and 
make-up styling tips. The magazine article gave a more detailed description of the 
schedule for the events and used the trade name ‘Peek & Cloppenburg’ at several 
points in doing so. In the photographic image of one of the defendant’s clothing 
outlets, too, the words ‘Peek & Cloppenburg’ appeared in illuminated lettering 
over the shop entrances and the trade name initials (‘P&C’) were visible on the 
door handles. The article pointed out the fact that there are two independent Peek 
& Cloppenburg undertakings and made it clear that ‘this information is provided 
by Peek & Cloppenburg KG Düsseldorf’. 
3 The article appeared as follows: 
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PEEK & CLOPPENBURG 
 
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4 The action brought by the applicant seeking (principally) an order prohibiting the 
defendant, in the course of competition, from having advertisements published 
without clearly identifying them as an ‘advertisement’ (as was the case here, 
according to the application) was successful at first and second instances. By its 
appeal on a point of law, the defendant maintains its contention that that action 
should be dismissed. 
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Essential arguments of the parties in the main proceedings 
5 The applicant claims that the abovementioned advertisement infringes the 
prohibition on editorial advertising laid down in Paragraph 3(3) of the UWG in 
conjunction with point 11 of the annex to Paragraph 3(3) of the UWG. 
6 As regards whether the magazine article has editorial content, the defendant 
contends that, since the reader’s attention is drawn to the joint advertising events 
organised by GRAZIA magazine and the defendant, that article is at most ‘self-
coverage’ but not an advertorial. 
7 In this regard, the style of layout is not in itself sufficient to give the impression of 
objective and neutral reporting. The profiling of an event to promote (not least) 
the sales of the magazine’s own press products does not give the impression of 
research or evaluation. The article’s presentation as an editorial item does, 
however, presuppose some form of reporting. There is by no means sufficient 
evidence to warrant the classification of the article as a whole as advertising. 
8 Neither does that article constitute promotion, since the contested ‘report’ is 
composed of inviting and attractive texts on the subject of an event, but says 
nothing about the quality of goods. 
9 So far as ‘payment’ is concerned, the assumption of consideration for an editorial 
article presupposes the existence of a purposive relationship between the grant of 
the economic advantage and the publication such that what appears to be a neutral 
and objective report has in fact been ‘purchased’. A situation in which a trader 
shares the cost of an advertisement which is jointly organised with a media 
operator and benefits both undertakings is not sufficient to support that 
assumption. In such a situation, only the jointly organised ‘event’ is collectively 
financed, the media operator’s reference to the advertisement in the editorial 
article, on the other hand, serving exclusively its own interests. An averagely 
observant reader will not expect objective and critical reporting if for no other 
reason than that the publication clearly pursues the media operator’s own interests 
as co-organiser of the event. The fact that such ‘reader offers’, considered in their 
entirety, are in the nature of advertising is clear.  
10 In the case of a fashion magazine article which refers to an event jointly organised 
with a fashion retailer, a situationally observant reader will expect not objective 
and factual information but further details about the organisation of the event. In 
cases in which third-party promotion coincides with self-promotion, the criteria to 
be applied are different from those that normally govern ‘covert advertising’, on 
account of the different degree of attention paid to the former by the target public. 
The article in question does not constitute covert advertising either. It is, rather, an 
open promotion of the business interests of both the magazine and the defendant. 
PEEK & CLOPPENBURG 
 
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Brief presentation of the reasons for the request 
11 The referring court states that the advertisement at issue is a commercial practice 
within the meaning of both national law and Directive 2005/29/EC (and, in 
particular, not only on the part of the defendant but also on the part of GRAZIA 
magazine), inasmuch as it is specifically intended to increase the sales of both the 
defendant and GRAZIA magazine. At the same time, the contested advertising 
consists only in the publication of the article, not in the organisation of the events 
announced and described therein. 
12 Moreover, the article in question has editorial content. An article has editorial 
content where its layout is such that it appears to be an objective and neutral 
report by the media operator itself. The decisive criterion is the understanding of a 
reasonably well-informed, situationally observant and circumspect consumer. It is 
immaterial in this regard whether the article was drafted by the undertaking 
placing the advertisement itself or by an editor of the media operator. The 
publication at issue gives an average situationally observant reader the impression 
of objective and neutral reporting by GRAZIA magazine itself, not least because 
the layout and colouring of the article are consistent with the presentation of other 
editorial articles and differ clearly from the advertisements printed in the 
magazine. 
13 Furthermore, the article is promotional. In order for an article to be classified as 
such, a trader must have the intention of using the editorial content in question to 
promote the sales of his goods or services. This must always be assumed to be the 
case where the article objectively contains advertising. It is not necessary for the 
article to identify a particular product the sales of which are to be promoted. The 
promotional purpose of the article is apparent not least from the illustration of the 
‘P&C’ clothing outlet and the overlay of the branded clothing which can be 
purchased there. What is more, the multiple references to ‘Peek & Cloppenburg’ 
and ‘P&C’ represent another means by which the defendant’s undertaking and 
products are advertised. That advertising is further reinforced by the 
announcement of the dates of events taking place at the defendant’s branches 
which are specifically intended to attract female customers. In addition, the article 
serves to promote GRAZIA magazine too. It is a joint advertisement the specific 
purpose of which is to promote the sales of both undertakings. While it is not a 
precondition of using editorial content for the purpose of enhancing sales that the 
content in question should comment on the quality of particular goods, the article 
at issue certainly depicts and positively highlights a number of specific products 
by reference to their brand name. 
14 The question is whether the defendant paid for the use of editorial content to 
promote a product, within the meaning of the first sentence of point 11 of Annex I 
to Directive 2005/29/EC, and, therefore, financed its use for that purpose within 
the meaning of point 11 of the annex to Paragraph 3(3) of the UWG, which must 
be interpreted in conformity with that directive. 
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15 In that regard, the first question referred seeks to determine whether ‘payment’ 
within the meaning of the first sentence of point 11 of Annex I to Directive 
2005/29/EC presupposes the existence of monetary consideration or whether other 
forms of non-cash consideration are sufficient. 
16 The referring court assumes that other forms of non-cash consideration are 
sufficient. 
17 In support of that view, it cites, first of all, the wording used in various language 
versions [of that provision]. It is true that the term ‘bezahlt’, which refers 
primarily to monetary consideration, appears not only in the German text of the 
directive but also, for example, in its equivalent form, in the English (‘paid for’), 
Spanish (‘pagando’) and Dutch (‘betaald’) versions of that provision. However, 
other language versions contain a form of words corresponding to the German 
term ‘finanziert’ (financed), which can also include other forms of non-cash 
consideration. Thus, the French text of the directive, for example, uses the word 
‘financé’. In addition, the Italian version refers to support for the costs of the 
advertisement (‘i costi di tale promozione siano stati sostenuti’). 
18 The purpose of that provision also supports a broad interpretation of the term in 
question. That provision is intended to separate advertising from the editorial 
media. The background to that requirement of separation is the view that a 
consumer will be less critical of information provided by a third party that is not 
itself directly engaged in competition and will generally attach greater importance 
and attention to such information than to similar information easily recognisable 
as advertising provided by the advertiser himself. Disguising the promotional 
intention [behind content] helps to prompt consumers to set aside their 
intrinsically critical attitude towards advertising messages. The identification of 
content as advertising is intended to enable consumers to adapt to the commercial 
nature of the communication and to react accordingly to it. The referring court 
takes the view that the normative purpose of the legislation can be achieved, and 
obvious circumventions of it avoided, only if the scope of the term ‘payment’ is 
not confined exclusively to monetary consideration but also includes any kind of 
consideration. 
19 Finally, the aim pursued by Directive 2005/29/EC of establishing a high level of 
consumer protection also militates in favour of a broad interpretation of the term 
‘payment’. That aim is emphasised not only in Article 1 of that directive, but also 
in its recitals (see, for example, recitals 1, 5, 20, 23 and 24). It is likely to be taken 
adequately into account only if the prohibition of advertorials is not confined 
exclusively to editorial articles for which the advertiser has provided monetary 
consideration. 
20 Lastly, a different interpretation would not seem to be called for even in the light 
of the fundamental right of freedom of the press. That fundamental right cannot 
justify the use of editorial content financed by a trader for the purposes of product 
promotion, since the reader’s confidence in the principle that recommendations 
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presented in editorial form are based on the conviction of the editorial staff and 
not on contributions from the trader profiting from that content must take priority. 
Purchased articles have the ultimate effect of destroying the cornerstone of press 
freedom. 
21 The second question seeks to ascertain whether the first sentence of point 11 of 
Annex I to Directive 2005/29/EC presupposes that a trader has provided the media 
operator with a non-cash benefit as consideration for the use of editorial content 
and, if so, whether that condition is satisfied in the present case. 
22 In the context of the prohibition of advertorials laid down in competition law, the 
‘payment’ or ‘financing’ of editorial content should probably be assumed to be 
present only where the payment or financing is to be regarded as consideration for 
the editorial content. Such consideration is likely to be lacking in any event where 
the non-cash benefit is unconnected to the publication of the editorial article. 
23 In the case of the reporting on a jointly organised and financed advertisement, 
such as that to be assessed in the present case, such a connection might possibly 
be assumed to be present not least because the advertisement and the report 
covering it could be regarded as forming part of a single advertising measure 
which can be viewed and assessed only as a whole. As a result, the mere fact that 
the advertisement is jointly financed would mean that the article published on that 
advertisement would have to be regarded as being (co-)financed too. 
24 In any event, however, the defendant and GRAZIA magazine did not only jointly 
contribute towards the costs and effort associated with the advertised 
‘StyleNights’. Rather, the defendant also made available to the magazine the 
rights to use the pictures placed in the contested report. The images presented 
there are not confined to a photographic reproduction of the defendant’s company 
logo and clothing outlets, but also show a number of products available for 
purchase from the defendant as well as various individuals (in particular, a 
‘[female] hair and make-up stylist’ and a disc jockey). The making-available of 
the rights to the images used must also be regarded as a non-cash benefit provided 
by the defendant. It is therefore likely that at least some of the non-cash benefits 
provided by the defendant are likely to be specifically connected to the publication 
of the contested magazine article too. 
25 However, given that the contested article reports on a joint advertisement by the 
defendant and GRAZIA magazine which is intended to increase the sales of both 
undertakings, it is open to question whether those benefits can indeed be regarded 
as consideration within the meaning described above or must more accurately be 
classified as contributions made by a partner and, if the latter is the case, whether 
the criterion for the existence of an advertorial may nonetheless be met. 
26 The appeal court formed the view without erring in law that the connection from 
the point of view of advertising and finance was not apparent with the requisite 
degree of clarity. 
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27 There is no infringement of provisions of national and EU law if it is made 
absolutely clear that the trader financed the use of editorial content for 
promotional purposes. 
28 Accordingly, the target public is not misled (only) in the case where the nature of 
the editorial article as advertising is clearly identifiable by the consumer, for 
example where that article is identified as an ‘advertisement’. The identification 
must be such that the average situationally observant reader can be in no doubt as 
to the nature of the article as advertising. 
29 The appeal court took the view that the contested magazine article did not meet 
those requirements. Its nature as advertising, the financial relationships and the 
defendant’s role in the publication were, it found, not apparent from the content of 
the article with the necessary clarity. This was true, first, with regard to the 
appeals made directly to readers, such as, for example, the words ‘We invite 
you …! Browse around the fashion temple with us after closing! We’ll be 
celebrating there … with you! Register right away at …’. Secondly, the article is 
not identified as an ‘advertisement’ or ‘publicity’, but merely as a ‘reader offer’ 
(‘Leseraktion’). The consumer cannot draw from that term any meaningful 
conclusions as to the article’s nature as advertising. 
30 Moreover, the criteria governing the assessment of a magazine’s self-promotion 
are no different from those that apply, for example, to the assessment under 
competition law of prize puzzles and the presentation in them of the prizes 
available. 
31 The average situationally observant reader will generally recognise a prize game 
too as being a form of self-promotion by the publisher of the magazine and will 
therefore assesses it differently from articles that come within the narrower 
editorial field. A presentation of the products offered as prizes is not therefore 
open to objection under competition law if it does not exceed the limits of what is 
normal and strictly customary. The depiction of prizes may, by contrast, be 
unlawful under competition law in the case where the promotional exhibition of 
the products offered as prizes stands distinctly in the foreground, while the public 
is given the impression that the editorial staff have followed an objective selection 
procedure in order to choose a product which is not only an attractive prize but 
also, on account of its characteristics, an item highly worthy of recommendation 
on other grounds too. 
32 In the present case, the fact that the contested publication also contains self-
promotion on the part of the media operator does not, in the referring court’s view, 
warrant a different assessment. It is true that the average reader may, to a certain 
extent, be aware that publishers engage in self-promotion. It does not follow from 
this, however, that such a reader would expect a publisher’s self-promotion to be 
simultaneously used to advertise a third-party undertaking or expect a third-party 
undertaking to be providing or to have provided non-cash consideration for the 
report itself or for the cooperation presented in it. This case cannot therefore be 
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assumed to be an instance of ‘open promotion’ of the business interests of the 
defendant (too).