01. May 2017
In a preliminary ruling of 30 March 2017 (Case C-146/16), the European Court of Justice (ECJ) decided that in certain cases of printed advertising, it may be sufficient for businesses to provide the compulsory information about their corporate address and identity on the respective website given in the advertisement, rather than in the ad itself.
In accordance with Article 7 Nr. 4 of Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive), companies are obliged to keep specific essential information readily available for consumers as long as an “invitation to purchase” is made. This includes, among others, the address and identity of the company, such as the trading name. Not providing this information as part of a commercial practice generally constitutes unfair competition and may lead to warning letters by direct competitors, agencies protecting consumers’ interests or possible other sanctions.
The original case
In the case at stake, Germany’s DHL Paket GmbH had placed an ad in the printed edition of “Bild am Sonntag”, promoting its online sales platform “MeinPaket.de”, where numerous third party commercial sellers offer a variety of products. The advertisement referred to five specific products and aimed at motivating the customers to visit the platform and use a code provided in the ad to purchase the product. While the essential product information was available in the ad, it did not include the address or identity of the respective individual seller. An association against unfair competition practices took the matter to court claiming a violation against the applicable German provision (§ 5a (3) of the Act against Unfair Competition- UWG). Unlike the first instance Court (Bonn’s Regional Court), the Court of Appeal (Higher Regional Court of Cologne) ruled in favor of the defendant, stating that it should be considered sufficient to provide the necessary information on the internet platform itself rather than as part of the printed newspaper ad. This is because, according to the Court, the products at issue may only be purchased online so the consumer must necessarily visit the website, where they can easily find the information. The case eventually reached Germany’s Federal Court of Justice (BGH), which then referred it to the ECJ within a preliminary ruling procedure.
ECJ: Potential limitations of space must be taken into account
Firstly, the ECJ confirmed the specific way of printed advertising was indeed an “invitation to purchase” within the meaning of the applicable Directive. According to the Court of Justice, in specific cases where an online sales platform is promoted in a print medium and where within this platform, numerous sellers offer a variety of products, there may be limitations of space as laid down in Article 7 Nr. 3 of the Directive. A major criterion as to whether such limitation of space could justify the lack of information in a printed ad is whether the consumers who may purchase the products via the website mentioned in the ad are in a position to easily obtain that information upon visiting the website. This question should be decided on a case-by-case basis by the competent national courts, the ECJ ruled.
Significance of ECJ’s decision for the legal practice
The decision will certainly be welcomed by commercial sellers in the EU, and particularly in Germany, where warning letters against businesses have become an almost daily event. Our firm has represented numerous corporate clients and individual sellers warned because of alleged unfair competition practices in connection with the lack of essential information when offering their products. The information about corporate address and identity is particularly relevant when advertising products in flyers, selling prospects and other printed media. ECJ’s ruling now makes it clear that while the information must generally be provided as soon as there is an invitation to purchase, there can be exceptions due to potential limitations in space. This would most certainly be relevant for many flyers, which include limited space only. The question, whether or not it would suffice to provide the information on the respective website only, must be decided based on the circumstances of the particular case.
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