Purely Creative Ltd and Others v Office of Fair Trading.
Date: 2012-10-18
30. With regard in particular to the second indent of paragraph 31 of Annex I to the Unfair Commercial Practices Directive, it is to be noted that, according to the wording of that provision, an unfair practice exists where the consumer is subject to a requirement to pay money or incur a cost on taking any action to claim what is presented to him as a prize or other equivalent benefit. That wording does not allow for any exception, meaning that it is evident that the expression ‘incur a cost’ does not allow the consumer to bear the slightest cost, even if it is de minimis compared with the value of the prize or a cost which would not procure any advantage for the trader, such as the cost of a stamp.
41. The failure to include in national legislation the headings which appear in Annex I to the Unfair Commercial Practices Directive cannot have any bearing on the interpretation of that directive. The same applies to divergences between national laws implementing that directive, referred to by the traders. By contrast, it should be recalled that, in applying national law, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the Unfair Commercial Practices Directive, in order to achieve the result pursued by that directive and thereby comply with the third paragraph of Article 288 TFEU (see, to that effect, Case C-106/89 Marleasing  [1990] ECR I-4135, paragraph 8; Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 113; and Case C-69/10 Samba Diouf [2011] ECR I-7151, paragraph 60).
44. Article 1 of that directive provides that its purpose is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection (Joined Cases C-261/07 and C-299/07 VTB-VAB and Galatea  [2009] ECR I-2949, paragraph 51).
45. As is apparent from the recitals in the preamble to the Unfair Commercial Practices Directive, in particular recital 17, legal certainty is an essential element for the sound functioning of the internal market. It was in order to attain that objective that the legislature collected in Annex I to the directive the commercial practices which are, in all circumstances, unfair and which, therefore, do not require a case-by-case assessment against the provisions of Articles 5 to 9 of that directive.
53. Clear and sufficient consumer information is important where the trader wishes to ensure that consumers can identify a prize and assess its nature. In that regard, it should be recalled that, pursuant to recital 18 in the preamble to the Unfair Commercial Practices Directive, where a commercial practice is specifically aimed at a particular group of consumers, it is desirable that its impact be assessed from the perspective of the average member of that group. According to that recital, national courts will have to exercise their own judgment in order to establish the typical reaction of the average consumer in a given case.
57. In the light of all the foregoing considerations, the answer to the questions referred is as follows:
– paragraph 31, second indent, of Annex I to the Directive on Unfair Commercial Practices Directive must be interpreted as prohibiting aggressive practices by which traders give the false impression that the consumer has already won a prize, while the taking of any action in relation to claiming that prize, be it requesting information concerning the nature of that prize or taking possession of it, is subject to an obligation on the consumer to pay money or to incur any cost whatsoever;
– it is irrelevant that the cost imposed on the consumer, such as the cost of a stamp, is de minimis compared with the value of the prize or that it does not procure the trader any benefit;
– it is also irrelevant that the trader offers the consumer a number of methods by which he may claim the prize, at least one of which is free of charge, if, according to one or more of the proposed methods, the consumer would incur a cost in order to obtain information on the prize or how to acquire it;
– it is for the national courts to assess the information provided to consumers in the light of recitals 18 and 19 in the preamble to the Unfair Commercial Practices Directive and Article 5(2)(b) thereof, that is to say, by taking into account whether that information is clear and can be understood by the public targeted by the practice.
Costs