Article 5 1.
Article 6 1.
Article 7 1.
Annex I al1 19.
Annex I al2 31.
|National ID||Comm. Tournai (prés.) 16 March 2011|
|Common name||Comm. Tournai (prés.) 16 March 2011||Decision type||Court decision, first degree|
|Court||Comm. Tournai (prés.)||Plaintiff(s)||M. le directeur général de la direction générale du contrôle et de la médiation du Service public fédéral Économie, P.M.E. Classes moyennes et Énergie|
|Court translation||President of the Commercial Court of Tournai||Defendant(s)||A.M.A.|
|Keywords||black list, misleading commercial practices, misleading omissions, omission, prizes, transactional decision|
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Informing consumers that they have won a prize, whereas the terms and conditions, printed in small print on the back side of such announcement, state that the consumer by responding to the announcement will only have a chance to win this prize, constitutes an unfair commercial practice as it:
- misleads the consumer and might induce him to take a transactional decision which he may not have taken otherwise;
- does not provide sufficient information on the trader's offer in relation to the conditions under which the prize can be won;
- omits to give clear and precise information on the nature of the game organized;
- infringes several blacklisted practices by (a) claiming in a commercial statement to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent, and (b) creating the false impression that the consumer has already won a prize when in fact there is no prize or taking any action in relation to claiming the prize is subject to the consumer paying money (paragraphs 19 and 31 of the Annex I to the Directive 2005/29).
Defendant is a Belgian company whose main activity consists of sale per correspondence of beauty products. It was established that the defendant connects the distribution of its product catalogue with propositions to participate in a lottery. In these messages, the consumers were notified that they had won substantial prizes, and that the only thing they needed to do was to confirm the receipt of the title and to order from the product catalogue one or more products amounting to a certain value.
However, on the back of this offer the terms and conditions were stated in small print. These terms stated that the consumer, when making the purchase, would only be allowed to a prize draw with other consumers who had acted correspondingly.
The Office of Fair Trading, the UK authority responsible for monitoring compliance with the laws on unfair commercial practices, contacted plaintiffs in order to ask them to take actions against the practices of the defendant, of which it was of the opinion that they breached the legislation on unfair commercial practices.
Does informing consumers that they have won a prize, whereas the terms and conditions, printed in small print on the back side of such announcement, state that the consumer by responding to the announcement will only have a chance to win this prize, constitute an unfair commercial practice?
According to the court, the above-mentioned promotional materials induced the consumers to believe that they had, with certainty, won a prize, which could be claimed by ordering a product of a certain value from the products' catalogue.
The court held that the affirmations on the promotional documentation at least created the impression that the receiving consumer was the only person who had won the prize, which was contradicted by the terms and conditions on the back of the promotional document. However, these terms and conditions were considered not easily readable as they were in small print and printed closely together without much intersection.
As such, so the court held, the consumer is likely to take a transactional decision which he might not have taken otherwise. The court considered that this is an infringement of article 5 of the Directive 2005/29, i.e. the prohibition of unfair commercial practices.
In addition, the court also ruled that the information as provided constitutes an infringement on the misleading commercial practices (article 6 of the Directive) as the consumer is led to believe that he has won the first prize in a lottery, which is fact is not true and subject to further conditions.
Moreover, the court held, omitting to give clear and precise information on the nature of the lottery or the "cheque" which was won by the consumer in question, constitutes a misleading omission in the sense of article 7 of the Directive.
Lastly, the court held that the practice concerned contravened the paragraphs 19 ("Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent") and 31 ("Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either: (a) there is no prize or other equivalent benefit, or (b) taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.") of the Annex I to the Directive 2005/29, as the court ruled that these practices were effectively at stake in this case.
|URL Decision||Decision full text|
The defendant was ordered, under the sanction of a daily penalty payment, to cease the above-mentioned activities.
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