The UK Office of Fair Trading accused 5
companies and 3 persons of using the false impression that I' summarise as “You have
won” for the promotion of their businesses (§ 2). Paragraph 31 of Annex I to
the Unfair Commercial Practices Directive 2005/29/EC bans the following
commercial strategy:
“Creating
false impression that the consumer has already won […] a prize or other
equivalent benefit, when in fact […] taking any action in relation to
claiming the prize or other equivalent benefit is subject to the consumer
paying money or incurring a cost.”
However the ECJ went even further. It declared
that this prohibition is of “absolute nature” (§ 34), which means that even if
the trader proposes several options how to get the prize (a car), one of which
is completely free (go to the factory and take it yourself), the presence of
paid options (we will send it) breaches the Directive (§§ 38, 39). The judges
replied that in such situations the offer should be limited to the geographic
area around the factory (§ 40). The spirit of “objective of ensuring a high
level of consumer protection” also confirmed this interpretation (§ 48).
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