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Free Gifts – Tied Offerings

By Pierre Greffe

Directive 2005/29/EC of the European Parliament and of the Council, of 11 May 2005, concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC and Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No. 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, save certain exceptions and without regard for the specific circumstances in the instance, prohibits any combined offer by a vendor to a consumer.

ECJ (1st Div.), 23 April 2009.

 

NOTE

This decision concerned two actions.

The first case was between Total Belgium, a subsidiary of the Total Group which namely distributed fuel in filling stations, and which had offered holders of a “Total Club” loyalty card three weeks’ free breakdown assistance for each purchase of at least 25 litres for a car or at least 10 litres for a scooter. A company providing breakdown and assistance services had asked the “rechtbank van koophandel te Antwerpen” to order Total Belgium to cease the commercial practice on the ground that it constituted a tied offering prohibited by law.

The rechtbank van koophandel te Antwerpen decided to stay ruling and to put the following preliminary question to the Court: “Does [the] Directive … preclude a national provision such as Article 54 of the (1991) Law which, except in the cases listed exhaustively in that Law, prohibits any combined offer by a vendor to a consumer, including an offer in which goods which the consumer has to buy are tied to a free service, the acquisition of which is linked to the purchase of the goods, and this regardless of the circumstances of the case, in particular regardless of the influence which the specific offer may have on the average consumer and of whether that offer can be considered in the specific circumstances to be contrary to professional diligence or fair commercial practices”.       

The second case was between a company running a lingerie shop and a company publishing several magazines including Flair. One of the issues of that weekly magazine contained a voucher entitling the holder to a 15 to 25% reduction on products sold in certain lingerie shops. The company running the lingerie shops thus brought action before the Court, the rechtbank van koophandel te Antwerpen, seeking an order prohibiting the practice in question.

The rechtbank van koophandel te Antwerpen decided to stay ruling and to put the following preliminary question to the Court: “Article 49 of the EC Treaty concerning the freedom to provide services and the Directive, which, except in the cases listed exhaustively in that Law, prohibits any combined offer by a vendor to a consumer whereby the acquisition, whether or not free of charge, of products, services or other advantages or of vouchers with which they can be obtained is linked to the acquisition of other, even identical, products or services, and this regardless of the circumstances of the case, in particular regardless of the influence which the specific offer may have on the average consumer and of whether that offer can be considered in the specific circumstances to be contrary to professional diligence or fair commercial practices”.     

This is thus how the ruling of 23 April 2009 was pronounced, according to which the provisions of Article L. 121-35 of the French Consumer Code [Code de la consommation] (completed by Articles 23 to 25 of the Decree of 29 December 1986 (1) no longer appear to be applicable(2).

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