Judgment;Summary — ECLI:EU:C:2025:352
Date: 2025-05-15
Language of the case: German
Court formation: Second Chamber
Subject matter: Right of establishment;Consumer protection;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-100/24 – 1 
Case C-100/24 
Request for a preliminary ruling 
Date lodged: 
7 February 2024 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
21 December 2023 
Applicant and appellant on a point of law: 
Verbraucherzentrale Hamburg e. V. 
Defendant and respondent on a point of law: 
bonprix Handelsgesellschaft mbH 
  
[…] 
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
[…] 
in the case of 
Verbraucherzentrale Hamburg e. V., […] 
[…] Hamburg, 
Applicant and appellant on a point of law, 
- […] 
v 
bonprix Handelsgesellschaft mbH, […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 21. 12. 2023 – CASE C-100/24 
 
2  
[…] Hamburg, 
Defendant and respondent in the appeal on a point of law, 
- […] 
Further to the hearing held on 21 December 2023 […], the First Civil Chamber of 
the Bundesgerichtshof (Federal Court of Justice) 
hereby orders: 
I. The proceedings are stayed. 
II. The following question is referred to the Court of Justice of the 
European Union for a preliminary ruling on the interpretation of 
Article 6(c) of Directive 2000/31/EC of the European Parliament and 
of the Council of 8 June 2000 on certain legal aspects of information 
society services, in particular electronic commerce, in the Internal 
Market (‘Directive 2000/31/EC’; OJ L 178, 17 July 2000, p. 1): 
Does advertising with a payment arrangement (in the present 
case, ‘convenient purchase on invoice’), which, while having 
only a low monetary value, contributes to the safety and legal 
interests of the consumer (in the present case, no disclosure of 
sensitive payment data; in the case of rescission of the contract, 
no reclamation of an advance payment), constitute a promotional 
offer within the meaning of Article 6(c) of Directive 2000/31/EC 
on electronic commerce? 
Grounds 
1 A. The applicant is an association on the list referred to in Section 4 of the Gesetz 
über Unterlassungsklagen bei Verbraucherrechts- und anderen Verstößen (Law on 
prohibitory injunctions in the case of breaches of consumer and other laws, – ‘the 
UKlaG’). The defendant operates an online mail-order business. 
2 In December 2021, the defendant included on its website www.bonprix.de the 
words ‘convenient purchase on invoice’ (see Annex K2, reproduced below, with 
the addition of an arrow to clarify the information). 
BONPRIX 
 
3 
 
3 The applicant alleged that that advertising was misleading on the ground that it 
did not reveal the existing proviso of a creditworthiness assessment, and 
unsuccessfully sent a warning letter to the defendant. 
4 The applicant claims that the defendant should be ordered, subject to further 
specified administrative sanction, 
to cease advertising on a website published for the purposes of initiating 
sales contracts with consumers – as is apparent from the screenshot 
produced in Annex K2 – by means of the slogan ‘convenient purchase on 
invoice’ where the purchase on invoice thus advertised is offered only 
subject to an assessment of the purchaser’s creditworthiness. 
5 The applicant also seeks reimbursement of the costs of the warning letter. 
6 The Landgericht (Regional Court, Germany) dismissed the action. After prior 
notification, the court of appeal dismissed the applicant’s appeal by means of a 
unanimous order. By way of its appeal on a point of law, for which the Chamber 
granted leave and which the defendant seeks to have dismissed, the applicant is 
continuing the pursuit of its claims. 
7 B. The success of the appeal on a point of law depends on the interpretation of 
Article 6(c) of Directive 2000/31/EC. Before a ruling can be given on the 
appellant’s appeal on a point of law, the proceedings must therefore be stayed and 
a preliminary ruling must be obtained from the Court of Justice of the European 
Union pursuant to point (b) of the first paragraph and the third paragraph of 
Article 267 TFEU. 
8 I. The court of appeal gave the following reasons for dismissing the claims 
asserted in the action: 
REQUEST FOR A PRELIMINARY RULING OF 21. 12. 2023 – CASE C-100/24 
 
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9 The advertisement stating ‘convenient purchase on invoice’ is neither misleading 
nor contrary to an obligation to provide information. 
10 The claim is not misleading. In the present context, the public understands that 
general indication only as meaning that a purchase on invoice is possible. 
However, the consumer addressed does not expect all the terms and details of a 
purchase on invoice to be communicated to him or her at this stage. He or she 
does not read into the statement that that possibility is granted unconditionally and 
unreservedly to any purchaser. It is not eye-catching advertising because it is not 
highlighted. Thus, the consumer’s attention is not drawn to a sensational or 
exceptional message. 
However, it would be unusual for the defendant not to make purchase on invoice 
subject to conditions. The defendant has argued, in essence, that, in the context of 
online mail order sales, a purchase on invoice is customary in the industry. The 
applicant did not adequately rebut that analysis. Even if a consumer were not to 
consider the defendant’s possible conditions because of the absence of any 
indication to that effect, it would not be misleading. The contested statement is 
objectively true because a purchase on invoice from the defendant is possible and 
the balancing of the interests to be carried out by means of objectively accurate 
information, when examining whether it was misleading, would be in favour of 
the defendant. The advertisement did not have the effect of attracting more 
attention. During the ordering process, the customer has been informed of the 
conditions of purchase on invoice. 
11 Nor does the statement breach an obligation to provide information. It is necessary 
to examine whether, in the light of the specific layout of the defendant’s website, 
which is directly linked to the advertising message ‘convenient purchase on 
invoice’, the consumer must process the information as to whether that purchase 
on invoice is subject to conditions, and accordingly, to which conditions it is 
subject. For the reasons already given, that question is to be answered in the 
negative. In particular, the obligation to provide information laid down in Section 
6(1), point 3, of the Telemediengesetz (Telemedia Act; ‘the TMG’), which 
requires promotional offers, such as discounts, bonuses and gifts to be clearly 
identifiable as such, and is one of the provisions transposing the directives of EU 
law to which Section 5a(4) of the Gesetz gegen den unlauteren Wettbewerb (Act 
against Unfair Competition; ‘the UWG’) refers, has not been infringed. A 
purchase on invoice is not a non-cash benefit comparable to the discounts, 
bonuses or gifts referred to in the provision. There is no additional, tangible and 
nameable advantage in the context of goods or services offered without additional 
consideration. In the case of a purchase on invoice, the buyer must pay the same 
price; it is payable immediately, without further agreement, after receipt of the 
goods. The only financial advantage for the buyer lies in the fact that he or she has 
to pay the purchase price a few days later than with other methods of payment. No 
advantage is granted beyond the actual purchase. 
BONPRIX 
 
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12 In the absence of a right to injunctive relief, the costs of sending a warning letter 
should not be reimbursed. 
13 II. The appeal on a point of law must be upheld if the court of appeal erred in 
finding that the defendant had not infringed Section 5a(2) and (4) of the UWG in 
the version in force until 27 May 2022 (UWG, old version)/Section 5a (1) and 
Section 5b(4) of the UWG in the version in force from 28 May 2022 (UWG, new 
version), read in conjunction with Section 6(1) no. 3 of the TMG. 
14 1. […] a right to bring proceedings […] exists […]. 
15 2. Under the first sentence of Section 5a(2) of the UWG, old version, a person is 
deemed to have acted unfairly in a particular case, on the basis of all the 
circumstances, where he or she omits material information (no. 1) which the 
consumer needs, depending on the context, in order to take an informed 
transactional decision; and (no. 2) where his or her omission is likely to induce the 
consumer into taking a transactional decision which he or she would not have 
taken otherwise. Under Section 5a(1) of the UWG, new version, unfairness is 
deemed to have occurred where a person misleads a consumer or other market 
participant by omitting material information (no. 1) which the consumer or other 
market participant needs, depending on the relevant context, in order to take an 
informed transactional decision; and (no. 2) where that omission is likely to 
induce the consumer or the other market participant into taking a transactional 
decision which he or she would not have taken otherwise. Under Section 5a(4) of 
the UWG, old version, and Section 5b(4) of the UWG, new version, ‘material’ 
within the meaning of section 5a(2) of the UWG, old version, and Section 5a(1) of 
the UWG, new version, is also deemed to include that information which may not 
be withheld from consumers on the basis of EU regulations or under legal 
provisions implementing EU directives for the purposes of commercial 
communications, including advertising and marketing. 
16 The provisions of the first sentence of Section 5a(2) of the UWG, old version, and 
Section 5a(1) of the UWG, new version, are intended to transpose Article 7(1) of 
Directive 2005/29/EC of the European Parliament and of the Council concerning 
unfair business-to-consumer commercial practices in the internal market 
(‘Directive 2005/29/EC’) (see Bundesgerichtshof (Federal Court of Justice, 
Germany), judgment of 26 October 2023 – I ZR 176/19, GRUR 2023, 1704 [juris 
paragraph 20] = WRP 2024, 65 – Cigarette vending machine III, with further 
references). Under that provision, a commercial practice is to be regarded as 
misleading if, in its factual context, taking account of all its features and 
circumstances and the limitations of the communication medium, it omits material 
information that the average consumer needs, depending on the context, in order 
to take an informed transactional decision and thereby induces or is likely to 
induce the average consumer into taking a transactional decision that he or she 
would not have taken otherwise. Article 7(5) of Directive 2005/29/EC, on the 
basis of which Section 5a(4) of the UWG, old version/Article 5b(4) of the UWG, 
new version, were adopted (cf. Bundesgerichthof (Federal Court of Justice), 
REQUEST FOR A PRELIMINARY RULING OF 21. 12. 2023 – CASE C-100/24 
 
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GRUR 2023, 1704 [juris, paragraph 20] – cigarette vending machine III, with 
further references), provides that information established by EU law in relation to 
commercial communication including advertising or marketing, a non-exhaustive 
list of which is contained in Annex II to the Directive, is to be regarded as 
material. Reference is made in the list in Annex II to Directive 2005/29/EC to 
Article 6 of Directive 2000/31/EC, which is transposed into German law by 
Section 6(1) of the TMG. 
17 3. In the present case, it is conceivable that the defendant breached the obligation 
to provide information laid down in Article 6(1) no. 3 of the TMG. Under 
Article 6(1) no. 3 of the TMG, service providers must, in the case of commercial 
communications which are telemedia or parts of telemedia, comply with the 
following conditions: promotional offers, such as discounts, premiums and gifts, 
must be clearly identifiable as such, and the conditions which are to be met to 
qualify for them must be easily accessible and presented clearly and 
unambiguously. That provision is intended to transpose Article 6(c) of Directive 
2000/31/EC (on the previous provision, identical in that regard, of Section 7 of the 
TMG, old version, cf. explanatory memorandum to the Government Draft Act on 
the Legal Framework for Electronic Commerce, Bundestag printed paper 14/6098, 
p. 22), and therefore requires an interpretation consistent with the Directive. 
Under Article 6(c) of Directive 2000/31/EC, in addition to other information 
requirements established by EU law, Member States are to ensure that commercial 
communications which are part of, or constitute, an information society service 
comply at least with the following conditions: promotional offers, such as 
discounts, premiums and gifts, where permitted in the Member State where the 
service provider is established, must be clearly identifiable as such, and the 
conditions which are to be met to qualify for them must be easily accessible and 
be presented clearly and unambiguously. 
18 a) As the operator of an online mail-order business, the defendant is a service 
provider within the meaning of Section (2) no. 2 of the TMG/Article 2(b) of 
Directive 2000/31/EC (on the concept of service provider, cf. Bundesgerichtshof 
(Federal Court of Justice), judgment of 9 September 2021 – I ZR 90/20, BGHZ 
231,38 [juris paragraph 106 – Influencer I). 
19 b) The indication ‘convenient purchase on invoice’ contested in the present case is 
a commercial communication and is part of an electronic media or information 
society service within the meaning of Section 6(1) no. 3 of the TMG/Article 6(c) 
of Directive 2000/31/EC. 
20 A commercial communication within the meaning of Section 2 no. 5 of the 
TMG/Article 2(f) of Directive 2000/31/EC means any form of communication 
designed to promote, directly or indirectly, the goods, services or image of a 
company, organisation or person pursuing a commercial, industrial or craft 
activity or exercising a regulated profession, but not information allowing direct 
access to the activity of the company, organisation or person, in particular a 
domain name or an electronic-mail address, or communications relating to the 
BONPRIX 
 
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goods, services or image of the company, organisation or person, compiled in an 
independent manner, particularly if without financial consideration. According to 
the Chamber, this definition of commercial communications is also decisive for 
the interpretation of Section 5a(4) of the UWG, old version, Section 5b(4) of the 
UWG, new version/Article 7(5) of Directive 2005/29/EC (see Bundesgerichtshof 
(Federal Court of Justice), GRUR 2023, 1704 [juris, paragraph 20 – Cigarette 
vending machine III). It follows that the defendant’s statement contested in the 
present case falls within the concept of commercial communication because it 
contributes to promoting directly the sale of the defendant’s products. 
21 The statement is also part of a telemedium (first sentence of Section 1(1) of the 
TMG) or an information society service (Article 2(a) of Directive 2000/31/EC) 
because the defendant makes it on the website advertising its mail-order service 
(cf. Article 1(2) of Directive 98/48/EC as amended by Directive 98/34/EC laying 
down a procedure for the provision of information in the field of technical 
standards and regulations). 
22 c) It must be determined whether the disputed indication, promoting the 
possibility of a ‘convenient purchase on invoice’, falls within the concept of 
promotional offers within the meaning of Article 6(c) of Directive 2000/31/EC. 
23 aa) The meaning and scope of a legal term of EU law, which is not defined in the 
EU law at issue, must be determined by considering its usual meaning in everyday 
language, while also taking into account the context in which it occurs and the 
purposes of the rules of which it is part (see, to that effect, Court of Justice of the 
European Union, judgment of 3 September 2014 – C-201/13, GRUR 2014, 972 
[juris paragraph 19] = WRP 2014, 1181 – Deckmyn and Vrijheidsfonds; Court of 
Justice of the European Union, judgment of 7 April 2022 – C-668/20, ZfZ 2022, 
184 [juris paragraph 67] – Y GmbH [vanilla oleoresin]). 
24 bb) According to the literal meaning of the requirement ‘promotional offers’, the 
offer of ‘convenient purchase on invoice’ that an undertaking makes to promote 
its goods may fulfil the criteria for an offence. The very fact that the defendant 
considers the statement to be worth mentioning shows that it anticipates it will 
have an advertising effect, that is to say, a promotional effect. 
25 cc) The regulatory context raises the question whether the concept of promotional 
offers is limited by the addition of examples (‘such as’) of ‘price discounts, 
bonuses and gifts’, to the effect that mere payment arrangements, such as the 
possibility of a purchase on invoice, are not covered by that provision. In so far as 
it is argued that Section 6(1) no. 3 of the TMG refers only to non-cash benefits 
(see BeckOK, Informatons- und Medienrecht, Pries, 42nd edition [situation of 
1 November 2023], Section 6 of the TMG, paragraph 7; BeckOK, IT-Recht, 
Sesing-Wagenpfeil, 12th edition [situation of 1 July 2023], Section 6 of the TMG, 
paragraph 31; Spindler in Spindler/Schmitz, TMG, 2nd edition, Section 6 
paragraph 23), this does not preclude the inclusion of the offer to purchase on 
invoice within the concept of an offer for promotion where – as in the present 
REQUEST FOR A PRELIMINARY RULING OF 21. 12. 2023 – CASE C-100/24 
 
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case – the payment method advertised is associated with a non-cash advantage 
(even a minimal one) in view of the associated de facto deferral of payment. In 
any event, if the requirement of a non-cash benefit is waived and even the promise 
of preferential treatment is deemed to be sufficient (the view taken by 
Roßnagel/Schmitt, Beck’scher Kommentar zum Recht der Telemediendienste, 
Article 6 of the TMG, paragraph 24), the criteria for an offence have been 
fulfilled. 
26 On the other hand, it could mitigate against the inclusion of payment 
arrangements within the criteria for an offence to emphasise – with the appeal 
against the appeal on a point of law – the ‘campaign character’ of the sales 
promotion measures listed by way of example in order to delimit the concept of 
sales promotion from the (wider) concept of promotion (Section 2 no. 5 
TMG/Article 2(f) of Directive 2000/31/EC). 
27 dd) Under its recital 10, the objective of Directive 2000/31/EC is to create an area 
without internal frontiers as far as electronic commerce is concerned, which 
ensures a high level of protection of objectives of general interest, including 
consumer protection. Under the second sentence of recital 29 of that directive, in 
the interests of consumer protection and fair trading, commercial communications, 
including discounts, promotional offers and promotional competitions or games, 
must meet a number of transparency requirements. 
28 The inclusion of advertising involving methods of payment in the concept of a 
sales promotion offer seems to be consistent with the objective of consumer 
protection. The appeal on a point of law rightly argues that granting the option to 
purchase on invoice is also in the interests of the purchaser in terms of security 
because, when making a purchase on invoice, he or she is not required to indicate 
to the seller sensitive payment data (for example, in the case of payment by credit 
card, the credit card number and control number, or account number in the case of 
direct debit). In addition, in the case of a possible rescission, for example because 
of the exercise of the right of withdrawal conferred on the consumer at the time of 
distance sale under Article 9(1) of Directive 2011/83/EU of the European 
Parliament and of the Council on consumer rights or in the case of defects in the 
goods, the purchaser is not exposed to the effort of making a repayment claim due 
to his or her advance payment. 
29 The fact that Article 6(1)(g) of Directive 2011/83/EU provides that, in the case of 
a distance contract, the consumer must be informed of the arrangements for 
payment before the contract is concluded does not preclude a broad interpretation 
of the concept of offers for sales promotion. It is true that a broad interpretation of 
Article 6(c) of Directive 2000/31/EC would lead to clear upstreaming of the 
information requirement laid down in Article 6(1)(g) of Directive 2011/83/EU. 
However, under the express wording of the provision, the information to be 
provided under Article 6(c) of Directive 2000/31/EC is ‘in addition to other 
information requirements established by [EU] law’. 
BONPRIX 
 
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30 ee) The question therefore arises whether advertising with a payment arrangement 
(in the present case: ‘convenient purchase on invoice’) is subject to the concept of 
promotional offers within the meaning of Article 6(c) of Directive 2000/31/EC, 
which, while having only a low monetary value, contributes to the safety and legal 
interests of the consumer (in the present case, no disclosure of sensitive payment 
data; in the case of rescission of the contract, no reclamation of an advance 
payment). 
31 4. The question referred will permit to rule over the issue. 
32 a) In so far as the disputed indication constitutes a promotional offer within the 
meaning of Section 6(1) no. 3 of the TMG, the claims for an injunction and for 
reimbursement of the costs of giving formal notice, relied on in the action, exist 
because the defendant failed to provide information on the conditions of use of the 
promotional offer provided for in that provision, since it omitted to state that the 
advertised possibility of purchasing on invoice is subject to a prior assessment of 
creditworthiness. 
33 b) The claim is not well founded on the ground of deception within the meaning 
of Section 5(1) and (2) no. 1 of the UWG. The appellate court did not err in law in 
denying the existence of such a right. 
[…] 
Lower courts:  
Landgericht Hamburg (Regional Court Hamburg, Germany), decision of 21 July 
2022-403 HKO 37/22 –   
Oberlandesgericht Hamburg (Higher Regional Court Hamburg, Germany), 
decision of 9 January 2023-15 U 75/22 
[…]