Case law

  • Case Details
    • National ID: 4Ob244/12d
    • Member State: Austria
    • Common Name:Stickeralbum
    • Decision type: Supreme court decision
    • Decision date: 19/03/2013
    • Court: Supreme Court (Vienna)
    • Subject:
    • Plaintiff: Unknown
    • Defendant: Unknown
    • Keywords: advertisement, black list, parents
  • Directive Articles
    Unfair Commercial Practices Directive, Annex I, 28.
  • Headnote
    Addressing children in an unfair manner to induce their parents to take commercial decisions, constitutes an aggressive commercial practice, but advertisements directed to children are as such not unfair if other elements of an unfair practice are not fulfilled.
  • Facts
    The defendant operates a chain of supermarkets in Austria, selling groceries and other consumer goods. Between January and March 2011 the defendant applied the following advertising campaign. The consumers received a package containing five stickers with a purchase value of EUR 10.

    The stickers could be used with a sticker album sold by the defendant at a price of EUR 1,99. It was also possible to acquire stickers separately for a price of EUR 0,50 per sticker. The defendant advertised this action on its web page, on TV and in the shops as follows: "Get a sticker album and collect stickers.", "Get a sticker album for EUR 1,99.", "Get the animal stickers at the counter."

    The plaintiff, an association entitled to raise a claim against aggressive practices directed to consumers, requested that the defendant cease and desist to induce the consumers, i.e. children, to purchase consumer goods by offering the stickers at purchase value or to influence their parents or other persons to such purchases, as well as to cease and desist to offer the sale of certain products (sticker albums and separate stickers) by direct invitations.

    The first instance judge dismissed the claim in its entirety, arguing that advertisements directed at children is as such not an unfair commercial practice and a direct exhortation is only apparent in respect to the album, but not the stickers. Even in respect to the album however, the first court held, there is no exploitation of the inexperience of children and the main element of the action are the stickers and not the album.

    The court of appeal overturned the decision of the first judge (except in respect to TV advertising) and argued that the advertisements were not permissible due to the imperative wording both in respect to the album as well as in respect to the stickers (including the wording "Pack of stickers for free at EUR 10 purchase value").  
  • Legal issue
    The Supreme Court confirmed the cease and desist order in respect to the exhortation to purchase the sticker album, arguing that this has constituted without a doubt a direct exhortation to children to buy advertised products as prohibited by the UCP Directive. The Supreme Court did not confirm the cease and desist order in respect to the sticker collection campaign as such and in respect to the exhortation to collect the stickers. In respect to the dismissal, the Court argued that such actions may constitute aggressive commercial practices, but the particular action does not fulfill the requirements as there is no misleading or other unfair practice apparent. Addressing advertisements to children as such does not constitute an aggressive practice, as the parents can be expected to control the children's wishes.

    The reasoning of the court of appeal was accepted by the Supreme Court in respect to the sticker album, but the remaining parts of the advertisement were not seen as imperative.  
  • Decision

    (1) Does addressing children in an unfair manner to induce their parents to take commercial decisions, constitute an aggressive commercial practice?

    (2) Are advertisements directed to children as such unfair, even if other elements of an unfair practice are not fulfilled?  

    Full text: Full text

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  • Legal Literature
    Sorted by
    • Member State: Austria
    • Title: Advertising for children by using collectors albums
    • Author: MAJCHRZAK, K.

    Austria Advertising for children by using collectors albums MAJCHRZAK, K.
  • Result
    The plaintiff's claim was accepted in respect to the imperative advertisement of the sticker album, but has been repealed in respect to the advertisement of and the sticker action in general.