Opinion of the Advocate General — ECLI:EU:C:2024:514
Date: 2024-06-13
Language of the case: Swedish
Procedure: Reference for a preliminary ruling
Origin: Sweden

summary 
the following. The product advertised by Guldbrev should be regarded as a 
bundled service consisting of valuation and purchase of gold, for which reason the 
advertising falls within the scope of the marknadsföringslagen (2008:486) (Law 
(2008:486) on marketing; ‘the MFL’). Marketing carried out via Google 
advertisements and on websites with a comparison tool is misleading and unfair, 
first, under point 22 in Annex I to Directive 2005/29/EC of the European 
Parliament and of the Council of 11 May 2005 concerning unfair business-to-
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consumer commercial practices in the internal market (‘the directive’) and, 
second, under Paragraphs 8 and 9 of the MFL. The advertising of gold prices 
constitutes bait advertising which is contrary to points 5 and 6(c) of Annex I to the 
directive. Guldbrev has failed sufficiently clearly to identify the websites as 
marketing and to state that Guldbrev is the originator of the advertising. The 
highest prices which Guldbrev advertises are unreasonable and, in addition, as 
regards 24 carat gold, wholly unpredictable or impossible to obtain due to the 
requirements laid down by Guldbrev. Furthermore, there are misleading price 
claims which affect the consumer’s ability to make an informed transactional 
decision under Paragraph 10, second subparagraph, point (4), in conjunction with 
the first subparagraph of Paragraph 8 of the MFL. The way in which Guldbrev 
advertises its prices is also so unusual, compared to business operations in general 
and gold purchasing activity in particular, that it may likewise be regarded as 
being contrary to good marketing practice under Paragraphs 5 and 6 of the MFL. 
Guldbrev’s advertising of the price which the company pays for gold lacks 
sufficient pricing information and also lacks other essential information. Those 
deficiencies mean that the marketing is contrary to Paragraph 5, the third 
subparagraph of Paragraph 10 and Paragraph 12 of the MFL. By placing a 
countdown timer directly linked to an offer to sell gold at the highest gold price, 
expressed in Swedish kronor per gram for a certain carat content, Guldbrev has 
conveyed the incorrect impression that there is a connection between that price 
and the countdown timer. The marketing is therefore misleading under 
Paragraph 10 of the MFL and unfair under Paragraph 8 of that law since it has 
affected the ability of the consumer to reach an [Or. 5] informed transactional 
decision. 
Guldbrev has disputed the claims and has principally submitted that there are no 
facts which lead to either the directive or the MFL being applicable since the 
practices at issue relate to purchasing services. In any event, according to 
Guldbrev, the marketing is not misleading or unfair. In addition, Guldbrev has put 
forward, inter alia, the following factors. In each section of the price comparison 
page there is information that Guldbrev is the originator of the information, for 
which reason there is no question of any disguised advertising. Sufficient 
information has been given to consumers regarding how the price is reached. It is 
clear both from Guldbrev’s contract terms and in close connection with the places 
where the price per gram is stated that the company’s price is fixed when the 
valuation is made. The consumer’s acceptance of the price is also required before 
the sale of the gold takes place. The countdown timer present on the company’s 
website does not in any way imply that any offer is limited in time. The average 
consumer does not receive the impression that the countdown means that swift 
action is needed in order to obtain a particular purchase price. 
4 The lower court, the Patent and Market Court, held that the practices used by 
Guldbrev in the scope of its activity constituted commercial practices under the 
directive. The Patent and Market Court referred to the European Commission’s 
Guidance on the implementation/application of the directive, SWD (2016) 163 
final of 25 May 2016, point 1.1.2, where it states that valuation of gold for 
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purchase can constitute a service which falls under the scope of the directive. The 
Patent and Market Court found that the practices to which the KO’s claims relate 
could not per se be regarded as excluded from the scope of the MFL. On a penalty 
of SEK 1 000 000 the Patent and Market Court prohibited certain marketing 
practices and ordered Guldbrev, in its advertising, to provide certain information. 
The Patent and Market Court found that Guldbrev’s marketing was unfair on the 
basis, inter alia, of the fact that 
– [Or. 6] Guldbrev’s practices relating to valuation [and] purchase of gold 
constituted a commercial practice in relation to a product under the directive, 
which was held to be a prerequisite for the MFL to apply; 
– the company’s Google advertisement lacked details of the advertiser, the 
website containing the comparison tool was inadequate under national law as 
regards the advertising identification and the advertiser’s details, but point 22 
of the ‘black list’ [in Annex 1 to the directive] was, however, not applicable; 
– the manner in which the information on the setting of the price of gold was 
presented did not diminish the incorrect impression received by the average 
consumer that the price stated in the advertising would be offered per gram of 
gold irrespective of the weight sold or the rapidity with which it was sent in to 
Guldbrev; and 
– there was a significant risk that the average consumer, on a fleeting look at the 
webpage, would incorrectly conclude that the rapidity with which a ‘Guldbrev’ 
[the package sent out by the company in which the gold would be sent to it] 
was ordered would affect the price of the gold which the consumer wishes to 
sell. 
5 Guldbrev has brought an appeal against sections of that judgment to the Patent 
and Market Court of Appeal and has claimed that the KO’s action should be 
dismissed. The KO has opposed any variation of the judgment. 
6 The Patent and Market Court of Appeal must, inter alia, rule on whether the 
practices adopted by Guldbrev constitute unfair marketing. In order to assess that 
material question, the court must first ascertain whether the directive and MFL are 
at all applicable to the situation at issue. Accordingly, the Patent and Market Court 
of Appeal must, applying Article 2(c), (d) and (i) and Article 3(1) of the directive, 
rule on the extent to which the valuation and purchase of gold from consumers 
and such practices as are relevant here can be regarded as constituting commercial 
practices under the directive. 
 [Or. 7] Relevant national provisions and judicial decisions 
7 The provisions of the MFL implement the directive on unfair commercial 
practices. The relevant Swedish provisions are found in Paragraphs 5, 6, 8, 9, 10 
and 12 of the MFL. They are worded as follows: 
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Paragraph 5 of the MFL 
‘Marketing shall be consistent with good marketing practice.’ 
Paragraph 5 of the MFL 
‘Marketing which fails to be consistent with good marketing practice under 
Paragraph 5 shall be regarded as unfair if, to an appreciable extent, it affects 
or is likely to affect the recipient’s ability to make an informed transactional 
decision.’ 
Paragraph 8 of the MFL 
‘Marketing which is misleading under any of the provisions in Paragraphs 9, 
10 or 12 to 17 shall be regarded as unfair if it affects or is likely to affect the 
recipient’s ability to make an informed transactional decision. 
Such misleading marketing as is set out in points 1 to 23 of Annex I to 
Directive 2005/29/EC shall always be regarded as unfair.’ 
Paragraph 9 of the MFL 
‘All marketing shall be designed and presented in such a way that it is 
clearly understood that it is marketing. 
It must also be clear who is responsible for the marketing. However, that 
shall not be required of statements the only aim of which is to draw attention 
before follow-up statements.’ 
[Or. 8] Paragraph 10 of the MFL 
‘In marketing, a trader may not make use of incorrect claims or other 
statements that are misleading in relation to the trader’s own or someone 
else’s business activity. 
The first subparagraph shall apply especially in respect of statements 
relating to 
1. the product’s presence, nature, quantity, quality and other distinctive 
properties; 
[…] 
4. the product’s price, the basis of calculation of the price, special price 
advantages and payment conditions 
[…] 
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Nor may a trader omit essential information in the marketing of its own or 
someone else’s business activity. Misleading omissions also include cases 
where the essential information is provided in an unclear, incomprehensible, 
ambiguous or other inappropriate manner.’ 
Paragraph 12 of the MFL 
‘Marketing shall be misleading if the trader offers the consumer, in a 
statement, a particular product at a stated price without the following 
essential information being provided: 
1. [Or. 9] the product’s distinctive characteristics in so far as that is 
appropriate to the medium and product; 
2. price and unit price stated in the manner set out in Paragraphs 7 to 10 
of the prisinformationslagen (2004:347) (Law (2004:347) on pricing 
information); 
3. the trader’s identity and geographical address; 
4. conditions for payment, delivery and performance if they depart from 
what is usual for the industry or the product in question; 
5. information on the right of withdrawal or the right to cancel a 
purchase, which by law must be provided to the consumer. 
Marketing shall also be misleading if the trader offers the consumer, in a 
statement, several specific products with details of an inclusive price without 
that offer containing essential information in accordance with Paragraphs 1 
to 5 of the first subparagraph.’ 
Relevant provisions of EU law 
8 Article 2(c), (d) and (i) and Article 3(1) of Directive 2005/29 of the European 
Parliament and of the Council of 11 May 2005 concerning unfair business-
to­consumer commercial practices in the internal market read as follows: 
‘Article 2 
Definitions 
For the purposes of this directive: … 
(c)  “product” means any good or service including immovable 
property, digital service and digital content, as well as rights and obligations; 
(d) “business-to-consumer commercial practices” (hereinafter also referred 
to as commercial practices) means any act, omission, course of conduct or 
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representation, commercial communication including advertising and 
marketing, by a trader, directly connected with the promotion, sale or supply 
of a product to consumers; 
[Or. 10] … 
(i) “invitation to purchase” means a commercial communication which 
indicates characteristics of the product and the price in a way appropriate to 
the means of the commercial communication used and thereby enables the 
consumer to make a purchase; 
Article 3 
Scope 
1. This Directive shall apply to unfair business-to-consumer commercial 
practices, as laid down in Article 5, before, during and after a commercial 
transaction in relation to a product.’ 
9 In a notice entitled ‘Guidance on the interpretation and application of Directive 
2005/29 of the European Parliament and of the Council of 11 May 2005 
concerning unfair business-to-consumer commercial practices in the internal 
market’ (OJ C 526, 29.12.2021, p. 1), the European Commission sets out 
expressly that the reverse situation to [such] commercial practices [set out in the 
directive], where traders purchase products from consumers, does not fall within 
the scope of the directive, but that there are, however, cases where a link can be 
established between the sale of a product by a consumer to a trader and the 
promotion, sale or supply of a (different) product to the consumer. As an example, 
it states that the purchase and resale of gold could in some circumstances fall 
under the directive. For example, a trader, who offers consumers a professional 
evaluation for their gold before buying it, could be considered as providing a 
service to the consumers. When this is the case, the directive on unfair 
commercial practices will apply and, as a consequence, the trader should not 
provide misleading information on the real value of the gold or on the price of the 
service offered (point 2.3.2). 
10 In the judgment of the Court of Justice of 15 March 2012 in Case C-453/10, 
Pereničová and Perenič (EU:C:2012:144), the Court of Justice of the European 
Union recalled that Article 2(d) of the directive uses a particularly wide 
formulation when defining the term ‘commercial practice’ (paragraph 38). 
Further, it is stated [Or. 11] that, in accordance with Article 3(1) of the directive, 
read in conjunction with Article 2(c) of that directive, the directive applies to 
unfair business-to-consumer commercial practices before, during or after a 
commercial transaction relating to any goods or service (paragraph 39). 
11 The Court of Justice of the European Union stated, in its judgment of 20 July 2017 
in Case C-357/16, Gelvora (EU:C:2017:537), inter alia, that, under Article 3(1) of 
the directive, read in the light of recital 13 thereof, that directive applies to unfair 
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commercial practices in which an undertaking engages, even outside any 
contractual relationship, either before or after the conclusion of a contract, or 
following the conclusion of a contract or during the performance thereof 
(paragraph 20). The Court found that the words ‘directly connected with the sale 
of a product’ cover any measure taken in relation not only to the conclusion of a 
contract but also to its performance, and in particular the measures taken in order 
to obtain payment for the product (paragraph 21). It was held that debt recovery 
activities may be regarded as a ‘product’ within the meaning of Article 2(c) of the 
directive (paragraph 23). 
12 In the judgment of the Court of Justice of 7 September 2016 in Case C-310/15, 
Deroo-Blanquart (EU:C:2016:623), the Court stated that combined offers, which 
are based on the linking together of at least two different offers of products or 
services into a single offer, constitute commercial acts which clearly form part of 
an operator’s commercial strategy and relate directly to the promotion thereof and 
its sales development. It follows, in the view of the Court, that they do constitute 
commercial practices within the meaning of Article 2(d) of the directive 
(paragraph 28). 
13 In addition, in the judgment of the Court of Justice of the European Union of 
22 September 2022 in Case C-335/21, Vicente (EU:C:2022:720), it was held that 
Article 2(d) of the directive uses a particularly wide formulation when defining 
the term ‘commercial practice’ and that under Article 3(1) of the directive, read in 
conjunction with Article 2(c) thereof, the directive applies to unfair business-to-
consumer commercial practices before, during or after a commercial transaction 
relating to any goods or service (paragraphs 83 and 84). 
[Or. 12] The need for a preliminary ruling 
14 In the view of the Patent and Market Court of Appeal, it is possible to find, in the 
light of the case-law set out above, that the advertising in question can constitute a 
commercial practice under the directive, provided that it relates to a product 
within the meaning of the directive. As is apparent, there has been no ruling by the 
Court of Justice of the European Union on that question. The assessment of 
whether the trader’s offer in the situation at issue relates to a product within the 
meaning of the directive is relevant to whether the national provisions set out 
above are to be interpreted in the light of the directive’s substantive rules. The 
Patent and Market Court of Appeal therefore requests a preliminary ruling on the 
following questions. 
Request for a preliminary ruling 
1. Does the valuation and purchase of gold from consumers constitute a 
product (combined product) within the meaning of Article 2(c), (d) and (i) 
and Article 3(1) of Directive 2005/29 concerning unfair business-to-
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consumer commercial practices in the internal market in a situation such as 
that at issue before the national court? 
2. If the answer to Question 1 is in the negative, does the valuation of gold in 
the situation at issue before the national court constitute a product within the 
meaning of the directive? 
[…]