RLvS Verlagsgesellschaft mbH v Stuttgarter Wochenblatt GmbH.
Date: 2013-10-17
33. On that point, it is true that since Directive 2005/29 effects a complete harmonisation of the rules on unfair business-to-consumer commercial practices, two points must be noted: (i) only the 31 commercial practices listed in Annex I to that directive are to be deemed unfair ‘in all circumstances’ on the territory of the Member States; and (ii) the possibility the Member States have for maintaining or establishing in their territory measures which have as their aim or effect the classification of commercial practices as unfair on grounds relating to maintenance of the pluralism of the press does not appear amongst the derogations from the scope of the directive as set out in recitals 6 and 9 and in Article 3 thereof (see, to that effect, Case C‑540/08 Mediaprint Zeitungs- und Zeitschriftenverlag [2010] ECR I‑10909, paragraphs 26, 27 and 34).
35. In that connection, even when a national provision does pursue consumer protection objectives, on which it is for the referring court to make a finding, in order to ascertain whether such a provision comes within the scope of Directive 2005/29 it is also necessary that the conduct covered by that national provision is a commercial practice within the meaning of Article 2(d) of that directive (see, to that effect, Case C‑304/08 Plus Warenhandelsgesellschaft [2010] ECR I‑217, paragraph 35; Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 16; and order in Case C‑288/10 Wamo [2011] I‑5835, paragraphs 28 and 29).
36. This is so where the practices in question form part of an operator’s commercial strategy and are directly connected with the promotion and sale of its products or services, in which case they do indeed constitute commercial practices within the meaning of Article 2(d) of Directive 2005/29 and, consequently, fall within its scope (see Joined Cases C‑261/07 and C‑299/07 VTB-VAB and Galatea  [2009] ECR I‑2949, paragraph 50, and Plus Warenhandelsgesellschaft , paragraph 37).
37. Although Directive 2005/29 gives a particularly broad definition of ‘commercial practices’ (see Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 17, and order in Wamo , paragraph 30), the fact remains that the practices covered by it must be commercial in nature, that is to say, they must originate from traders, and they must be directly connected with the promotion, sale or supply of their products to consumers.
41. However, since the fact that the newspaper publisher proceeds with such publications which are liable to promote – possibly indirectly – the products and services of a third party is not liable to alter significantly the economic behaviour of the consumer in his decision to purchase or take possession of the (free) newspaper in question (on this aspect see Mediaprint Zeitungs- und Zeitschriftenverlag , paragraphs 44 and 45), such a publishing practice is not in itself liable to be classified as a ‘commercial practice’ within the meaning of Article 2(d) of Directive 2005/29.
44. Although the possibility cannot be ruled out that a newspaper publisher may itself employ, in its products or in other media, a commercial practice which may be classified as unfair in relation to the consumer concerned, in this case the reader, for example, by offering the chance of winning a prize in games, puzzles or competitions, thereby encouraging the consumer to purchase the product concerned, namely a newspaper (see, in that regard, in the context of Article 30 EC, now Article 36 TFEU, Case C‑368/95 Familiapress [1997] ECR I‑3689, paragraph 28), it must be remembered that point 11 of Annex I to Directive 2005/29 is not intended as such to require newspaper publishers to prevent possible unfair commercial practices by advertisers for which a direct connection could thereby be potentially established with the promotion, sale or supply to consumers of the products or services of those advertisers.