The Court first refers to the argument of the plaintiffs, who stated that the expression "creating the false impression" should be interpreted as such that the trader should have misled the consumer, so that the two situations as foreseen in point 31 of Annex I to the Directive (i.e. where there is no prize and where the consumer's action to claim the prize is subject to the consumer paying a cost) are only applicable when it is proven that the trader has misled the consumer, hence should not be applied when the consumer is provided with sufficient information, e.g. in relation to the costs payable to claim the prize. This is not correct according to the European Court. According to the Court, the prohibited practice consists in the creation of one of the impressions referred to in the first part of that paragraph, whereas, as stated in the second part of that paragraph, those impressions do not correspond to reality.
Further, in relation to costs (and the amount thereof) that could be asked from a consumer, the Court is very clear. The wording of point 31 in Annex I does not allow for any exception, meaning that it is evident that the expression "incur a cost" does not allow the consumer to bear the slightest cost, even if it is de minimis compared with the value of the prize or a cost which would not procure any advantage for the trader, such as the cost of a stamp. The European Court adds that given the absolute nature of the prohibition on imposing any cost, the offer of a number of options cannot eliminate the unfair character of the practice if any of the proposed options were to require the consumer to bear a cost, even a de minimis cost compared with the value of the prize. Further, the Court also points out that the practice is blacklisted, hence it does not need to be investigated whether it is misleading in the first place. Also, as the practice is listed under the "aggressive" practices, the question whether the practice of the trader is misleading does not play any role in the assessment.
The traders had also claimed that providing the consumer with adequate information concerning the nature of the prize and the conditions for collecting it, would make it possible to conclude that the practice is not unfair. In that regard, the Court distinguishes between the prize itself and the taking possession thereof. The Court states that, while the consumer cannot influence the prize description, point 31 of Annex I prohibits making action taken in relation to claiming the prize subject to the obligation, for the consumer, to pay money or incur a cost. However, the description of the prize can play an important role. In the decision, the example is given of an "entrance ticket" for a certain football match. When a trader awards an entrance ticket, this does not include the transport of the consumer from his home to the football stadium. However, when awarding "attendance" at a sports event, the trader must bear the costs of the consumer’s travel, hence the trader cannot require the consumer to pay for these costs as this would be an infringement of point 31 of Annex I.
The Court finally states that, like every other item of information provided by a trader to a consumer, information on the substance of the prize must be examined and assessed by the national courts in the light of recitals 18 and 19 in the preamble to the Directive 2005/29, and of Article 5(2)(b) of the Directive. This concerns the availability of the information and how it is presented, the legibility and clarity of the wording and whether it can be understood by the public targeted by the practice.
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