Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Plus Warenhandelsgesellschaft mbH.
Date: 2010-01-14
24. In this regard, it should be noted at the outset that, according to settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑18/01 Korhonen and Others  [2003] ECR I‑5321, paragraph 19; and Case C‑295/05 Asemfo  [2007] ECR I‑2999, paragraph 30).
25. It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases and, in particular, where it is quite obvious that the interpretation which is sought of the provisions of Community law referred to in those questions bears no relation to the actual facts of the main action or to its purpose (see, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 61, and Case C‑212/06 Gouvernement de la Communauté française and Gouvernement wallon  [2008] ECR I‑1683, paragraph 29).
29. As regards, next, the argument that Directive 2005/29 does not apply to the dispute in the main proceedings on the ground that the facts which gave rise to it occurred before that directive was adopted, it should be observed, first, that, according to the case‑law of the Court, from the date upon which a directive has entered into force, the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive (see, in particular, Joined Cases C-261/07 and C‑299/07 VTB‑VAB and Galatea  [2009] ECR I‑0000, paragraph 39 and the case‑law cited).
33. Lastly, with regard to the argument that Directive 2005/29 does not apply to the sales promotion practices at issue in the main proceedings, on the ground that they were expressly covered by a Commission proposal for a regulation, suffice it to note that that circumstance cannot, by itself, preclude the possibility, particularly in view of the fact that that proposal was withdrawn in 2006 and did not therefore lead to the adoption of a regulation, that such practices may constitute, in the current state of Community law, unfair commercial practices within the terms of that directive and come within its scope.
35. In order to reply to the question referred, it is necessary first of all to determine whether the practices which combine the purchase of goods or use of services with the participation of consumers in lotteries or prize competitions, and which are the subject of the prohibition at issue in the main proceedings, constitute commercial practices within the meaning of Article 2(d) of Directive 2005/29 and are therefore subject to the rules laid down by that directive.
36. In that regard, it should be borne in mind that Article 2(d) of Directive 2005/29 gives a particularly wide definition to the concept of commercial practices: ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’.
37. It must be concluded that promotional campaigns, such as those at issue in the main proceedings, which enable consumers to take part free of charge in a lottery subject to their purchasing a certain quantity of goods or services, clearly form part of an operator’s commercial strategy and relate directly to the promotion thereof and its sales development. It follows that they do indeed constitute commercial practices within the meaning of Article 2(d) of the directive and, consequently, come within its scope (see, by way of analogy, in regard to combined offers, VTB-VAB and Galatea , paragraph 50).
39. As has been stated at paragraph 36 of the present judgment, Directive 2005/29 is characterised by a particularly wide scope ratione materiae  which extends to any commercial practice directly connected with the promotion, sale or supply of a product to consumers. As is evident from recital 6 in the preamble to that directive, only national legislation relating to unfair commercial practices which harm ‘only’ competitors’ economic interests or which relate to a transaction between traders is thus excluded from that scope.
41. That stated, it should be borne in mind, next, that Directive 2005/29 fully harmonises at the Community level the rules relating to unfair business‑to-consumer commercial practices. Accordingly, as Article 4 thereof expressly provides, Member States may not adopt stricter rules than those provided for in the directive, even in order to achieve a higher level of consumer protection ( VTB-VAB and Galatea , paragraph 52).
42. In addition, Article 5 of Directive 2005/29 provides that unfair commercial practices are to be prohibited and sets out the criteria on the basis of which practices may to be classified as being unfair.
43. Thus, in accordance with Article 5(2), a commercial practice is unfair if it is contrary to the requirements of professional diligence and materially distorts, or is likely materially to distort, the economic behaviour of the average consumer with regard to the product.
44. Article 5(4) of the directive defines two precise categories of unfair commercial practices, that is to say, ‘misleading’ practices and ‘aggressive’ practices corresponding to the criteria set out in Articles 6 and 7 and in Articles 8 and 9 of Directive 2005/29 respectively. Under those provisions, such practices are in particular prohibited where, having regard to their nature and the factual context, they cause or are likely to cause the average consumer to take a transactional decision which he would not otherwise have taken.
45. Lastly, Annex I to Directive 2005/29 establishes an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) of the directive, are regarded as unfair ‘in all circumstances’. Consequently, as recital 17 in the preamble to Directive 2005/29 expressly states, those commercial practices alone can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9 of the directive.
53. Although it is liable to restrict the scope of the prohibition laid down in that provision, the fact remains that, because of its limited and pre‑defined nature, such an exception cannot take the place of the analysis, which must of necessity be undertaken having regard to the facts of each particular case, of the ‘unfairness’ of a commercial practice in the light of the criteria set out in Articles 5 to 9 of the directive, where, as here in the main proceedings, that practice is not listed in Annex I thereto (see VTB-VAB and Galatea , paragraphs 64 and 65).