UNFAIR COMMERCIAL PRACTICES
Promotional campaigns constitute commercial practices
• 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.
Complete harmonization commercial practices vis-à-vis consumers
• Austrian Government cannot validly argue that Paragraph 9a(1)(1) of the UWG falls outside the scope of the Directive in that it essentially envisages objectives relating to maintenance of the pluralism of the press
General prohibition on sales with bonuses precluded by directive
• In the light of the whole of the above, the answer to the first question must be that the Directive must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which lays down a general prohibition on sales with bonuses and is not only designed to protect consumers but also pursues other objectives.
Prohibting practices not listed in Annex I in all circumstances not permitted
• As regards the national legislation at issue in the main proceedings, it is undisputed that practices consisting in offering consumers bonuses associated with the purchase of products or services do not appear in Annex I to the Directive. Therefore, they cannot be prohibited in all circumstances, but can be prohibited only following a specific assessment allowing the unfairness of those practices to be established.
Offer linked to purchase of newspaper not unfair as such; to be verified whether it is contrary to requirements of professional diligence
• that the possibility of participating in a prize competition, linked to the purchase of a newspaper, does not constitute an unfair commercial practice within the meaning of Article 5(2) of the Directive, simply on the ground that, for at least some of the consumers concerned, that possibility of participating in a competition represents the factor which determines them to buy that newspaper
IPPT20101109, CJEU, Mediaprint v Österreich
