(1) The plaintiff points out that the commercial mailing to the consumer states amongst others that the consumer "is guaranteed 100% that he/she is one of the selected people to receive an electronic product ... This product is free of charge! … We have already paid for your prize!". The impression is created that the consumer has already won the free prize by simply paying 19,99 EURO (allegedly for administration and transport costs) within two days after receiving the mailing, while in fact payment of this sum is a condition to participate in winning one of the electronic products. Hence, the consumer must take the necessary steps to win the prize, although the false impression is created that the consumer has already won the prize.
It is held that such commercial practice is contrary to the prohibition of 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 taking any action in relation to claiming the prize is subject to the consumer paying money.
(2) The mailing is considered a commercial communication which should mention the main characteristics and the price of the products to which it refers. In order to participate in the promotional action of winning one of the electronic devices, the electronic communication creates the impression that the consumer has the right to react within 7 days after receiving the communication, while in fact the consumer must react within 2 days.
The plaintiff concludes that the consumer is not fully informed with respect to the main characteristics of the product, in particular relating to the availability of the product.
(3) In the mailing, the defendant states that the consumer is 100% guaranteed to receive an electronic device, free of any charge. In addition it is stated that the defendant has already paid for the product and the consumer solely has to pay 19,99 EURO for administration and transport costs. Overall, the impression is created that the consumer only has to contribute the symbolic sum of 19,99 EUR in order to receive the free product.
During the proceedings, the plaintiff noted that the contribution demanded from the consumer to participate in each case outweighed the unavoidable cost of responding to the commercial practice and collecting or paying for delivery. Hence, it was held that this commercial practice was contrary to Dutch legislation setting forth the rules on describing a product as "free" or "without a charge".
(4) In the regulation applicable to the promotional action of the defendant it was stated that the defendant organised the action according to the principles as set forth in the "code of conduct on promotional games" ("Gedragscode Promotionele Kansspelen"). A provision of this code sets forth that promotional games may only be organised for purposes of promotion and not as an independent activity. Further, any appeal to participate in a promotional game may not be misleading or may not be incomplete nor can it raise false expectations.
As regards the first provision (no independent activity), it is held that the defendant has not breached the code of conduct as the purpose of the promotional game is obviously for commercial purposes. As regards the provision relating to the misleading character of the games, the plaintiff holds that it is sufficiently established that the promotional action was misleading and incomplete (see above (1)-(3)).
As a result, the defendant has breached Dutch legislation by not complying with a code of conduct by which the trader has undertaken to be bound, and which sets forth firm commitments capable of being verified.
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