BKK Mobil Oil Körperschaft des öffentlichen Rechts v Zentrale zur Bekämpfung unlauteren Wettbewerbs eV.
Date: 2013-10-03
25. In order to ascertain whether a national body, such as BKK, which is governed by public law and which is tasked with the management of a statutory health insurance fund, must be considered a ‘business’ within the meaning of the Unfair Commercial Practices Directive and whether it is, in that capacity, subject to the requirements laid down by that directive in the event that, as in the present case, it provides misleading information to its members, it should be noted from the outset that, according to the Court’s settled case-law, the need for uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the purpose of the legislation in question (see, inter alia, Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43; Case C‑40/01 Ansul  [2003] ECR I‑2439, paragraph 26; and Case C‑271/10 VEWA [2011] ECR I‑5815, paragraph 25).
32. In that regard, it is from the outset clear from the drafting of Article 2(b) of the Unfair Commercial Practices Directive 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.
33. 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’, which refers to any individual not engaged in commercial or trade activities (see, by analogy, Case C‑89/91 Shearson Lehman Hutton  [1993] ECR I‑139, paragraph 22).
34. As is apparent inter alia from Article 1 of and recital 23 in the preamble thereto, the Unfair Commercial Practices Directive 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, which harm consumers’ economic interests (see, to that effect, Case C‑540/08 Mediaprint Zeitungs- und Zeitschriftenverlag [2010] ECR I‑10909, paragraph 27).
35. That objective of the Unfair Commercial Practices Directive, which is to fully protect consumers against practices of that kind, relies on the assumption that, in relation to a trader, the consumer is in a weaker position, in that the consumer must be considered to be economically weaker and less experienced in legal matters than the other party to the contract (see, by analogy, Shearson Lehman Hutton , paragraph 18).
36. Accordingly the Court has already held that, for the purposes of the interpretation of that directive, the concept of consumer is of the utmost importance and that the provisions of that directive are essentially designed with the consumer as the target and victim of unfair commercial practices in mind (see, to that effect, Case C‑122/10 Ving Sverige  [2011] ECR I‑3903, paragraphs 22 and 23, and Case C‑435/11 CHS Tour Services [2013] ECR I‑0000, paragraph 43).
37. In a situation such as that at issue in the main proceedings, BKK’s members, who must manifestly be regarded as consumers within the meaning of the Unfair Commercial Practices Directive, could be deceived by the misleading information circulated by that body thus preventing them from making an informed choice (see recital 14 in the preamble to that directive) 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 that directive. In those circumstances, whether the body at issue or the specific task it pursues are public or private is irrelevant.
40. That interpretation is also consistent with the wide scope ratione materiae of that directive which has already been acknowledged (see, to that effect, Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 21).