Case C-288/10

Wamo BVBA

v

JBC NV

and

Modemakers Fashion NV

(Reference for a preliminary ruling from the

rechtbank van koophandel te Dendermonde)

(First subparagraph of Article 104(3) of the Rules of Procedure – Directive 2005/29/EC – Unfair commercial practices – National legislation prohibiting announcements of price reductions or announcements suggesting such reductions)

Summary of the Order

Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29

(European Parliament and Council Directive 2005/29)

Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market 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 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.

Since Directive 2005/29 fully harmonises the rules relating to unfair business-to-consumer commercial practices, Member States may not adopt stricter rules than those provided for in the directive, as expressly provided for in Article 4 thereof, even in order to achieve a higher level of consumer protection.

The same directive establishes, in its Annex I, an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) of that directive, are regarded as unfair ‘in all circumstances’. Consequently, as recital 17 in the preamble to that directive expressly states, only those commercial practices can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9 of that directive.

However, the practices of announcing price reductions to consumers do not appear in Annex I to Directive 2005/29. 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.

(see paras 28, 33, 37-38, 40, operative part)

ORDER OF THE COURT (First Chamber)

30 June 2011 ( * )

(First subparagraph of Article 104(3) of the Rules of Procedure – Directive 2005/29/EC – Unfair commercial practices – National legislation prohibiting announcements of price reductions or announcements suggesting such reductions)

In Case C-288/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the rechtbank van koophandel te Dendermonde (Belgium), made by decision of 2 June 2010, received at the Court on 10 June 2010, in the proceedings

Wamo BVBA

v

JBC NV,

Modemakers Fashion NV,

THE COURT (First Chamber),

composed of A. Tizzano (Rapporteur), President of the Chamber, J.-J. Kasel, A. Borg Barthet, E. Levits and M. Safjan, Judges,

Advocate General: V. Trstenjak,

Registrar: A. Calot Escobar,

the Court proposing to give its decision by reasoned order in accordance with the first subparagraph of Article 104(3) of its Rules of Procedure,

after hearing the Advocate General,

makes the following

Order

1 This reference for a preliminary ruling concerns the interpretation of 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’) (OJ 2005 L 149, p. 22).

2 The reference has been made in the course of proceedings against Wamo BVBA (‘Wamo’), which runs the ZEB chain of clothes shops, brought by JBC NV and Modemakers Fashion NV, two companies which run competing shops, relating to announcements of price reductions which Wamo sent to its customers.

Legal context

European Union law

3 Recitals 6, 8 and 17 in the preamble to the Unfair Commercial Practices Directive state as follows:

‘(6) This Directive … approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers’ economic interests and thereby indirectly harm the economic interests of legitimate competitors. … It neither covers nor affects the national laws on unfair commercial practices which harm only competitors’ economic interests or which relate to a transaction between traders; taking full account of the principle of subsidiarity, Member States will continue to be able to regulate such practices, in conformity with Community law, if they choose to do so. …

…

(8) This Directive directly protects consumer economic interests from unfair business-to-consumer commercial practices. …

…

(17) It is desirable that those commercial practices which are in all circumstances unfair be identified to provide greater legal certainty. Annex I therefore contains the full list of all such practices. These are the only commercial practices which can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9. The list may only be modified by revision of the Directive.’

4 Article 1 of the Unfair Commercial Practices Directive provides:

‘The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers’ economic interests.’

5 Article 2 of that directive provides:

‘For the purposes of this Directive:

…

(d) “business-to-consumer commercial practices” (hereinafter also referred to as “commercial practices”) means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers;

…’

6 Article 3(1) of that directive provides:

‘This Directive shall apply to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product.’

7 According to Article 4 of the same directive:

‘Member States shall neither restrict the freedom to provide services nor restrict the free movement of goods for reasons falling within the field approximated by this Directive.’

8 Article 5 of the Unfair Commercial Practices Directive, entitled ‘Prohibition of unfair commercial practices’, is in the following terms:

‘1. Unfair commercial practices shall be prohibited.

2. A commercial practice shall be unfair if:

(a) it is contrary to the requirements of professional diligence,

and

(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.

…

4. In particular, commercial practices shall be unfair which:

(a) are misleading as set out in Articles 6 and 7,

or

(b) are aggressive as set out in Articles 8 and 9.

5. Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. The same single list shall apply in all Member States and may only be modified by revision of this Directive.’

National law

9 Article 49 of the Law of 14 July 1991 on commercial practices, consumer information and consumer protection ( Belgisch Staatsblad , 29 August 1991; ‘the LPPC’) is in the following terms:

‘For the purposes of this law, sales shall mean any offer for sale or sale to the consumer for the purpose of seasonally renewing the vendor’s stock by selling goods quickly and at reduced prices, under the name “Soldes”, “Opruiming”, “Solden” or “Schlussverkauf”, or any other equivalent name.’

10 Article 52(1) of the LPPC provides:

‘In the clothing, leather goods, fine leather craft and footwear sectors [sales] may only take place in the period from 3 January to 31 January inclusive and from 1 July to 31 July inclusive. …’

11 Article 53 of the LPPC provides:

‘1. During the pre-sale periods of 15 November to 2 January inclusive and from 15 May to 30 June inclusive, it is prohibited in the sectors set out in Article 52(1) to make announcements of price reductions or announcements which suggest a price reduction, …, regardless of the place or the methods of communication used.

…

Before the commencement of a pre-sale period, it is prohibited to make announcements or suggestions of price reductions which would be effective during that pre-sale period.

Notwithstanding the provisions of Article 48(4), clearance sales which take place during a pre-sale period may not be accompanied by an announcement of price reductions except in the cases and under the conditions laid down by the King.

2. The decrees adopted pursuant to Article 52(2) shall specify the pre-sale periods during which the prohibition referred to in paragraph 1 is applicable.

In the absence of regulations as referred to in Article 52(2), the prohibition referred to in paragraph 1 shall also be applicable to the [sales] referred to in Article 52(2).

…

4. The prohibition on announcements of price reductions referred to in paragraphs 1 and 2 is not applicable to sales of goods during occasional trade fairs of less than four days, organised not more than once a year by groups of local traders or with their participation.

The King may specify the conditions under which such events may be organised.’

12 The LPPC was repealed by the Law of 6 April 2010 on market practices and consumer protection ( Belgisch Staatsblad , 12 April 2010, p. 20803). That law entered into force on 12 May 2010 and provides, in Article 32, for a similar provision to that of Article 53 of the LPPC.

The dispute in the main proceedings and the question referred for a preliminary ruling

13 In the course of December 2009, Wamo 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 presentation of their loyalty card.

14 On 18 December 2009, JBC NV and Modemakers Fashion NV applied to the rechtbank van koophandel te Dendermonde (Commercial Court, Dendermonde) to have that invitation declared a prohibited announcement under Article 53 of the LPPC. By order granted the same day, that court prohibited Wamo from granting any price reduction in its shops up to 1 January 2010 on pain of a fine of EUR 2 500 per infringement established.

15 Wamo brought an application to have that order set aside claiming that Article 53 of the LPPC, firstly, does not prohibit the granting of reductions but rather the advertisements announcing those reductions, and, secondly, is, in any case, contrary to the Unfair Commercial Practices Directive and therefore cannot be applied.

16 Taking the view that the resolution of the dispute before it depends on the interpretation of the aforementioned directive, the rechtbank van koophandel te Dendermonde decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does the [Unfair Commercial Practices Directive] preclude a national provision such as that laid down in Article 53 of the [LPPC], which prohibits announcements of price reductions and suggestions of such reductions during defined periods?’

Consideration of the question referred

17 By its question, the national court asks, in essence, whether the Unfair Commercial Practices Directive must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which provides for a general prohibition of announcements of price reductions or announcements suggesting such reductions during the period preceding sales in specified sectors.

18 In accordance with the first subparagraph of Article 104(3) of the Rules of Procedure, where the answer to a question referred for a preliminary ruling may be clearly deduced from existing case-law, the Court may, after hearing the Advocate General, at any time give its decision by reasoned order in which reference is made to the relevant case-law.

19 The Court considers that that is true of the present case in so far as the answer to the question referred may be clearly deduced in particular from Case C-304/08 Plus Warenhandelsgesellschaft [2010] ECR I-0000, paragraphs 35 to 51, and Case C-540/08 Mediaprint Zeitungs- und Zeitschriftenverlag [2010] ECR I-0000, paragraphs 15 to 38.

Costs

41 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

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 a national provision, such as that at issue in the main proceedings, which provides for a general prohibition of announcements of price reductions or announcements suggesting such reductions during the period preceding sales, in so far as the provision pursues objectives relating to consumer protection. It is for the national court to determine whether that is the situation in the case in the main proceedings.

[Signatures]

* Language of the case: Dutch.