Case C‑428/11

Purely Creative Ltd and Others

v

Office of Fair Trading

(Reference for a preliminary ruling from the la Court of Appeal

(England & Wales) (Civil Division))

(Directive 2005/29/EC – Unfair commercial practices – Practice of informing the consumer that he has won a prize and obliging him, in order to receive that prize, to incur a cost of whatever kind)

Summary — Judgment of the Court (Sixth Chamber), 18 October 2012

Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Aggressive commercial practice consisting in informing a consumer of the winning of a prize while obliging him to incur a cost in order to receive it — Commercial practice deemed in all circumstances to be unfair — Obligation to provide the consumer with clear and sufficient information on the prize won — Assessment by the national court — Criteria

(European Parliament and Council Directive 2005/29, Recitals 18 and 19, Art. 5(2)(b), and Annexe I, point 31)

Paragraph 31, second indent, of Annex I to Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directives 84/450, 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 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.

(see para. 57, operative part)