Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG v "Österreich"-Zeitungsverlag GmbH.
Date: 2010-11-09
16. In order to reply to the question referred, it is necessary first of all to determine whether sales with bonuses, which are the subject of the prohibition at issue in the main proceedings, constitute commercial practices within the meaning of Article 2(d) of the Directive and are therefore subject to the rules laid down by that directive.
17. In that regard, it should be borne in mind that Article 2(d) of the Directive 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’.
18. 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 constitute commercial practices within the meaning of Article 2(d) of the Directive and, consequently, come within its scope (Case C-304/08 Plus Warenhandelsgesellschaft  [2010] ECR I-0000, paragraph 37 and case-law cited).
19. That conclusion cannot be called into question by the observations by Mediaprint and by the Austrian and Belgian Governments according to which 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 European Parliament and Council regulation (COM(2001) 546 final), amended (COM(2002) 585 final). 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that circumstance cannot, by itself, preclude the possibility, particularly in view of the fact that that proposal was withdrawn in 2006 and did not therefore lead to the adoption of a regulation, that such practices may constitute, in the current state of Union law, unfair commercial practices within the terms of that directive and come within its scope ( Plus Warenhandelsgesellschaft , paragraph 33).
21. As has been stated at paragraph 17 of the present judgment, the Directive 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 the 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.
26. Even if the national provision at issue in the main proceedings does essentially pursue the maintenance of pluralism of the press in Austria, it is important to note that the possibility of Member States 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 set out in the sixth and ninth recitals and in Article 3 thereof.
27. In that regard, it should be emphasised that the Directive carries out a complete harmonisation of the rules concerning unfair commercial practices of undertakings vis-à-vis consumers.
30. In that regard, it should be borne in mind, first, that, since Directive 2005/29 fully harmonises the rules relating to unfair business-to-consumer commercial practices, as Article 4 of the Directive 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 ( Plus Warenhandelsgesellschaft , paragraph 41 and case-law cited).
31. 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.
32. 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.
33. Moreover, 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.
34. 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.
37. Second, such national legislation, laying down measures which are more restrictive than those envisaged by the Directive, runs counter to the content of Article 4 of Directive 2005/29, which expressly prohibits Member States from maintaining or adopting more restrictive national measures, even where such measures are designed to ensure a higher level of consumer protection.
40. As the Court of Justice has already held, even if those exceptions are liable to restrict the scope of the prohibition of commercial practices consisting in the linking of an offer of bonuses with the purchase of goods or services, 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 Plus Warenhandelsgesellschaft , paragraph 53 and case-law cited).
44. The fact that, for at least part of the public concerned, the possibility of participating in a competition represents the factor which determines the purchase of a newspaper constitutes one of the factors which the national court may take into account when making such an assessment.
45. That fact may lead the national court to consider that the commercial practice in question materially distorts or is likely materially to distort the economic behaviour of the consumer, within the meaning of Article 5(2)(b) of the Directive.