1.4. Sales promotions fall within the scope of the Directive

Commercial practices such as combined or tied offers, discounts, price reductions, promotional sales, commercial lotteries, competitions, and vouchers fall within the scope of the Directive and are, thus, regulated by its provisions.

Indeed, the definition of commercial practices ("directly connected with the promotion, sale or supply of a product to consumers") clearly refers to promotions. As such, the Directive includes several provisions relating to promotional practices (e.g. Article 6(d) on misleading actions as regards the existence of a specific price advantage; Annex I point 5 (bait advertising), point 7 (special offers), point 19 and 31 (prizes promotion, competition), and point 20 (free offers)).

The Court of Justice has clarified this point in the "Total Belgium" case[9]:

"[...]combined offers constitute commercial acts which clearly form part of an operator's commercial strategy and relate directly to the promotion thereof and its sales development. It follows that they do indeed constitute commercial practices within the meaning of Article 2(d) of the Directive and, consequently, fall within its scope." (point 50).

According to paragraph 69 of the Advocate General's Opinion in this case, "combined offers are based on the linking together of at least two different offers of products into a single of sale...from a business management perspective, combined offers constitute a measure of pricing and communication policy, two of the most important policies in marketing".

The Court of Justice will shed further light on the Directive's scope in its upcoming judgments, namely:

Footnotes

[9] Joined cases C-261/07 (VTB-VAB NV v Total Belgium NV) and C-299/07 (Galatea BVBA v Sanoma Magazines Belgium NV), 23 April 2009.

[10] Opinion in case C-304/08 - 3 September 2009

Links to articles of the Directive

Keywords