Unfair Commercial Practices Directive, Whereas, (14)

Directive 2005/29 must be interpreted as precluding a national provision which provides for a general prohibition of announcements of price reductions or announcements suggesting such reductions during the period preceding seasonal sales, in so far as the provision pursues objectives relating to consumer protection and therefore falls well within the scope of that directive, which is for the national court to determine.

It is for the national court to establish whether the national provision at issue actually pursues objectives relating to consumer protection in order to determine whether that provision comes within the scope of the Unfair Commercial Practices Directive.  

Under Belgian consumer protection law, it is prohibited for traders active in the sectors of clothing, leather goods, fine leather craft and footwear to announce during so-called "pre-sales periods" (i.e. the periods of 15 November to 2 January inclusive and from 15 May to 30 June inclusive) to make announcements of price reductions or announcements which suggest a price reduction.

The plaintiff had sent an invitation to some of its customers regarding a private sale in its shops from 18 to 20 December 2009 inclusive. In that invitation it was stated that, during those three days, the chosen customers could benefit from greatly reduced prices on showing their loyalty card. According to the defendants, this was a practice contrary to the aforementioned prohibition on announcements of price reductions during the pre-sales periods.

In first instance, the judge has granted this request of the defendants and had ordered plaintiff to stop said announcements in its points of sale. Plaintiff appealed against this decision and the judge to which the case was referred to, suspended its ruling as it was of the opinion that an assessment by the European Courts should be made as to whether this prohibition under Belgian law is in line with European legislation, and more in particular the Directive 2005/29.  

Must Directive 2005/29 be interpreted as precluding a national provision which provides for a general prohibition of announcements of price reductions or announcements suggesting such reductions during the period preceding seasonal sales, in so far as the provision pursues objectives relating to consumer protection and therefore falls well within the scope of that directive?

As the Court already held in other decisions (see e.g. case C-304/08 and case C-540/08), the UCP Directive undertakes a full harmonization at Community level. Consequently, the Member States may not impose any  prohibition in principle on commercial practices other than those classified by the UCP Directive as practices regarded as unfair "in all circumstances" (listed in Annex I of the UCP Directive).

However, the Court reiterates that national legislation relating to unfair commercial practices which harm "only" competitors’ economic interests or which relate to a transaction between traders is excluded from the scope of Directive 2005/29. Whether this is indeed the case, is not for the European Courts to decide. To rule on the interpretation of national law is exclusively for the national court.

The Court therefore concluded that it is for the national court to establish whether the national provision at issue actually pursues objectives relating to consumer protection in order to determine whether that provision comes within the scope of the Unfair Commercial Practices Directive.  

URL: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010CO0288:EN:HTML

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The decision of the European Court was in line with its previous decisions.