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Case detail



Directive article Article 5 1.
Article 6 1. (f)
Article 7 1.
National ID 4Ob15/13d
Country Austria Decision date 19/03/2013
Common name Totalabverkauf II Decision type Supreme court decision
Court Oberster Gerichtshof (Wien) Plaintiff(s) Schutzverband gegen unlauteren Wettbewerb
Court translation Supreme Court (Vienna) Defendant(s) Mr Georg Köck
Subject clearance sale
Keywords identity of the tradermaterial informationmisleading omissionsomission

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Headnote

(1) Maintaining a national legal provision which generally prohibits clearance sales performed without an administrative authorization required under national law, runs afoul of the provisions laid down in the UCP Directive.

(2) Anonymously advertising a clearance sale constitutes a misleading commercial practice.
 

Facts

The plaintiff was an association representing the majority of the Austrian commercial chambers. The defendant was an unregistered single entrepreneur selling products within his establishment "T**** Auktionshaus".

The defendant advertised for one of his branch offices a "total sale - only EUR 3,50 per piece of children's clothing", without having the necessary permission for the sale. The defendant further also advertised the sale by means of anonymous advertisements.

The plaintiff requested that the defendant cease and desist to advertise the sale as he had no regulatory permission therefor, and also to cease anonymous advertisements in this respect.

As to the question whether the announcement of clearance sales can be prohibited in a general manner, in case an authorization has not been obtained, the Supreme Court referred the case to the European Court of Justice.
 

Legal issue

(1) Is it lawful to maintain a national legal provision which generally prohibits clearance sales performed without an administrative authorization required under national law?

(2) Does anonymously advertising a clearance sale, constitute a misleading commercial practice?
 

Decision

The Austrian Supreme Court previously referred this case to the European Court of Justice (ECJ) with the question whether the UCP Directive precludes a national provision under which the announcement of a clearance sale without the authorisation of the competent administrative authority is not permitted and for that reason must be prohibited in judicial proceedings, without it being necessary in those proceedings for the court to consider whether such a commercial practice is misleading, aggressive or otherwise unfair.

The ECJ answered to this question by stating that a national court must not order the cessation of a clearance sale on the sole ground that the it has not been the subject of prior authorisation by the competent administrative authority, without itself carrying out an assessment of the unfairness of the sale. As the plaintiff did not raise the question of unfairness in the case at hand, the main claim was to be denied.

However, the second claim in respect to anonymous advertising was nonetheless accepted, as the Supreme Court considered anonymous advertisements as being misleading. It came to this conclusion considering that the name of the trader is material information which in any case has to be disclosed in case of  an invitation to purchase.
 

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Result

The relevant provision in the Austrian Unfair Act regarding clearance sales, has been amended in accordance with the decision of the ECJ.

The claim to cease the anonymous advertising of the clearance sale was granted.
 

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