Case C‑59/12

BKK Mobil Oil Körperschaft des öffentlichen Rechts

v

Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

(Request for a preliminary ruling from the Bundesgerichtshof)

‛Directive 2005/29/EC — Unfair commercial practices — Scope — Misleading information circulated by a health insurance fund which is part of the statutory social security system — Fund established as a public law body’

Summary — Judgment of the Court (First Chamber), 3 October 2013

Approximation of laws — Unfair business-to-consumer commercial practices — Directive 2005/29 — Scope — Concept of ‘trader’ — Health insurance fund which is part of a statutory social security system and which is established as a public law body — Included

(European Parliament and Council Directive 2005/29, recital 23 and Arts 1(2)(a) and (b), and 6(1))

Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directive 84/450, Directives 97/7, 98/27 and 2002/65 and Regulation No 2006/2004, must be interpreted to the effect that a public law body charged with a task of public interest, such as the management of a statutory health insurance fund, falls within the persons covered by the directive.

It is from the outset clear from the drafting of Article 2(b) of Directive 2005/29 that the EU legislature has conferred a particularly broad meaning on the term ‘trader’, which refers to any natural or legal person which carries out a gainful activity and does not exclude from its scope either bodies pursuing a task of public interest or those which are governed by public law. In addition, with regard to the actual wording of the definitions in Article 2(a) and (b) of that directive, the meaning and scope of the concept of ‘trader’ which is used in that directive must be determined in relation to the related but diametrically opposed concept of ‘consumer’. As is apparent inter alia from Article 1 of, and recital 23 in the preamble to, the directive concerning unfair commercial practices seeks to provide a high common level of consumer protection by carrying out a complete harmonisation of the rules concerning unfair commercial practices, including misleading advertising by traders with regard to consumers. For the purposes of the interpretation of that directive, the concept of consumer is of the utmost importance since the provisions of that directive are essentially designed with the consumer as the target and victim of unfair commercial practices in mind.

In that regard, it is irrelevant, in a situation where the members of a health insurance fund established as a public law body could be deceived by the misleading information circulated by that body thus preventing them from making an informed choice and leading them to take a decision they would not have taken in the absence of such information, as envisaged by Article 6(1) of Directive 2005/29, whether the body at issue or the specific task it pursues are public or private.

(see paras 32-34, 36, 37, 41, operative part)

Case C‑59/12

BKK Mobil Oil Körperschaft des öffentlichen Rechts

v

Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

(Request for a preliminary ruling from the Bundesgerichtshof)

‛Directive 2005/29/EC — Unfair commercial practices — Scope — Misleading information circulated by a health insurance fund which is part of the statutory social security system — Fund established as a public law body’

Summary — Judgment of the Court (First Chamber), 3 October 2013

Approximation of laws — Unfair business-to-consumer commercial practices — Directive 2005/29 — Scope — Concept of ‘trader’ — Health insurance fund which is part of a statutory social security system and which is established as a public law body — Included

(European Parliament and Council Directive 2005/29, recital 23 and Arts 1(2)(a) and (b), and 6(1))

Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directive 84/450, Directives 97/7, 98/27 and 2002/65 and Regulation No 2006/2004, must be interpreted to the effect that a public law body charged with a task of public interest, such as the management of a statutory health insurance fund, falls within the persons covered by the directive.

It is from the outset clear from the drafting of Article 2(b) of Directive 2005/29 that the EU legislature has conferred a particularly broad meaning on the term ‘trader’, which refers to any natural or legal person which carries out a gainful activity and does not exclude from its scope either bodies pursuing a task of public interest or those which are governed by public law. In addition, with regard to the actual wording of the definitions in Article 2(a) and (b) of that directive, the meaning and scope of the concept of ‘trader’ which is used in that directive must be determined in relation to the related but diametrically opposed concept of ‘consumer’. As is apparent inter alia from Article 1 of, and recital 23 in the preamble to, the directive concerning unfair commercial practices seeks to provide a high common level of consumer protection by carrying out a complete harmonisation of the rules concerning unfair commercial practices, including misleading advertising by traders with regard to consumers. For the purposes of the interpretation of that directive, the concept of consumer is of the utmost importance since the provisions of that directive are essentially designed with the consumer as the target and victim of unfair commercial practices in mind.

In that regard, it is irrelevant, in a situation where the members of a health insurance fund established as a public law body could be deceived by the misleading information circulated by that body thus preventing them from making an informed choice and leading them to take a decision they would not have taken in the absence of such information, as envisaged by Article 6(1) of Directive 2005/29, whether the body at issue or the specific task it pursues are public or private.

(see paras 32-34, 36, 37, 41, operative part)