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Document 62011CN0428

    Case C-428/11: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 16 August 2011 — Purely Creative Ltd and others v Office of Fair Trading

    IO C 311, 22.10.2011, p. 25–26 (BG, ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)

    22.10.2011   

    EN

    Official Journal of the European Union

    C 311/25

    Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) made on 16 August 2011 — Purely Creative Ltd and others v Office of Fair Trading

    (Case C-428/11)

    2011/C 311/42

    Language of the case: English

    Referring court

    Court of Appeal (England & Wales) (Civil Division)

    Parties to the main proceedings

    Applicants: Purely Creative Ltd, Strike Lucky Games Ltd, Winners Club Ltd, McIntyre & Dodd Marketing Ltd, Dodd Marketing Ltd, Adrian Williams, Wendy Ruck, Catherine Cummings, Peter Henry

    Defendant: Office of Fair Trading

    Questions referred

    1.

    Does the banned practice set out in paragraph 31 of Annex 1 to Directive 2005/29/EC (1) prohibit traders from informing consumers that they have won a prize or equivalent benefit when in fact the consumer is invited to incur any cost, including a de minimis cost, in relation to claiming the prize or equivalent benefit?

    2.

    If the trader offers the consumer a variety of possible methods of claiming the prize or equivalent benefit, is paragraph 31 of Annex 1 breached if taking any action in relation to any of the methods of claiming is subject to the consumer incurring a cost, including a de minimis cost?

    3.

    If paragraph 31 of Annex 1 is not breached where the method of claiming involves the consumer in incurring de minimis costs only, how is the national court to judge whether such costs are de minimis? In particular, must such costs be wholly necessary:

    (a)

    in order for the promoter to identify the consumer as the winner of the prize, and/or

    (b)

    for the consumer to take possession of the prize, and/or

    (c)

    for the consumer to enjoy the experience described as the prize?

    4.

    Does the use of the words ‘false impression’ in paragraph 31 impose some requirement additional to the requirement that the consumer pays money or incurs a cost in relation to claiming the prize, in order for the national court to find that the provisions of paragraph 31 have been contravened?

    5.

    If so, how is the national court to determine whether such a ‘false impression’ has been created? In particular, is the national court required to consider the relative value of the prize as compared with the cost of claiming it in deciding whether a ‘false impression’ has been created? If so, should that ‘relative value’ be assessed by reference to:

    (a)

    the unit cost to the promoter in acquiring the prize; or

    (b)

    to the unit cost to the promoter in providing the prize to the consumer; or

    (c)

    to the value that the consumer may attribute to the prize by reference to an assessment of the ‘market value’ of an equivalent item for purchase?

    (1)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’)

    OJ L 149, p. 22

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