Scope of the prohibition of unfair commercial practices

Having already ruled on several occasions that the Unfair Commercial Practices Directive, which prohibits such practices vis-à-vis consumers, is characterised by a particularly broad material scope of application, the Court declares for the first time that this also applies to the personal scope of application of this Directive.

By its judgment, the Court of Justice in fact states that that directive applies to a body governed by public law which is entrusted with a task in the general interest, such as the administration of a statutory health insurance scheme.

Despite its public nature and its general interest mission, such a body must be regarded as a 'trader' within the meaning of the Directive to which the prohibition of unfair commercial practices applies. Indeed, the Directive does not explicitly exclude such entities from its scope. Moreover, the objective of the Directive, which is to ensure a high level of consumer protection in relation to unfair commercial practices and, in particular, misleading advertising, requires that such protection be guaranteed irrespective of the public or private nature of the body in question and of the specific task it performs.

In the present case, the Court answers a question referred by the Bundesgerichtshof (Federal Court of Justice) (Germany), which is called upon to rule on a dispute between the Wettbewerbszentrale, a German association for combating unfair competition, and the BKK, a statutory health insurance fund organised as a public corporation under the German legal system. In the view of the Federal Court of Justice, the statements published by the BKK on its website in 2008, according to which its members risked financial disadvantages if they switched insurers, constituted - as the Wettbewerbszentrale claimed - a misleading practice within the meaning of the Directive. However, it wondered whether the Directive, and thus the prohibition it imposes, could also apply to the BKK as a public law body entrusted with a task in the general interest.

Judgment of the Court of Justice of the European Union in Case C-59/12 - BKK Mobil Oil Körperschaft des öffentlichen Rechts ./. Zentrale zur Bekämpfung unlauteren Wettbewerbs eV


Source: ECJ press release of 03.10.2013


Goldberg Attorneys at Law 2013

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law