ECJ January 17, 2013, case C-206/11, Georg Köck c/ Schutzverband gegen unlauteren Wettbewerb

The ECJ recalls that, in order to prohibit a practice that is not listed in directive 2005/29, the judge must first assess the unfairness of such a practice.

An Austrian trader announced a clearance sale for the products in his shop without having obtained the prior administrative authorisation required by the law. A petition to have the practice stopped was filed by a consumer association. The court to which the matter was referred to, doubting the conformity of Austrian law with directive 2005/29 relating to unfair commercial practices, stayed the proceedings and referred the matter to the ECJ.

Having established that the operation in question indeed fell within the field of application of the directive, the Court recalled that only those practices figuring in Annex 1 could be considered as unfair without being subject to a prior assessment. The announcement of a clearance sale does not correspond to any of these practices and therefore cannot be reputed to be unfair per se.

The Court accepts that a prior or preventative verification by the State may be more adequate than a subsequent verification ordering the cessation of a practice that has already been implemented. However, such a verification cannot have the effect of prohibiting a practice without its unfairness having been assessed on the basis of the criteria set forth in article 5 of the directive, merely on the grounds that it has not been subject to prior authorisation. As such, the Austrian law, which stipulates that the judge assesses the unfairness of the practice only after having ordered its cessation, is contrary to the directive.

In France, Article L. 310-1 of the Commercial Code makes clearance sales subject to a prior declaration (and no longer a prior authorisation). Nevertheless, in practice, the Prefect may refuse to issue a receipt for the declaration if the file is incomplete and, without a receipt, the operation cannot take place. This legislation, which as a result can lead to a clearance sale being prohibited without its unfairness having been assessed, is therefore also contrary to the directive.