Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 2.

The omission to inform consumers participating in a prize draw, on how a winner is selected and notified, constitutes a misleading omission.

The plaintiff is a federal association. The defendant acquires newspaper and periodical subscriptions and sells them to publishing companies.

The defendant enclosed participation cards to the newspapers for a - free of charge - raffle. These cards contained underneath the blank field for the telephone number of the participant to be filled in, the following information:

"Winning notifications and other interesting offers by telephone of [...] GmbH in the subscriber area, voluntary information, the consent can be revoked at any time".

The plaintiff requested a cease and desist order of the said practice. 

The court of first and second instance both granted the plaintiff's request and held that the respective consent clause constituted  a provision in the general terms and conditions that was invalid according to § 307 I 1 of the German Civil Code (BGB) as it unfairly impaired the interests of consumers and therefore constituted an infringement of § 4 Nr. 11 UWG.  Furthermore, the described clause did not comply with § 7 II Nr. 2 UWG as telephone calls for advertising purposes required the prior express consent of the consumer. Finally, the respective clause also infringed § 4 Nr. 5 UWG due to lack of transparency.

The defendant appealed against these judgments to the Supreme court. 

 

The Supreme court first considered that the defendant's consent clause contravenes the transparency requirement of § 4 Nr. 5 of UWG, which stipulates that the conditions for the participation in a raffle with an advertising character need to be clear and unambiguous.

Further, it was held that as § 4 Nr. 5 UWG does not directly implement provisions of the UCP Directive, the requirements of § 4 Nr. 5 UWG have to be interpreted in accordance with the general rules of Art 7 sections (1) and  (2) of the UCP Directive. The conditions of participation in a raffle include all information which is required by the addressed consumers in order to take an informed transactional decision about the participation in such raffle. Thus, the advertiser also needs to inform the consumer on how the winner is selected and notified. This constitutes material information which is relevant to the consumer's transactional decision. As this information is not provided in a transparent way, § 4 Nr. 5 UWG is infringed in a relevant manner.

 

Does the omission to inform consumers participating in a prize draw, on how a winner is selected and notified, constitute a misleading omission?

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The court denied the defendant's appeal.