Purely Creative Ltd and others v Office of Fair Trading, C-428/11, EU:C:[2012]:651 – UCPD – Para 31 of Schedule 1, CPUTR - Article 288 TFEU.
1) list of commercial practices in Annex 1 UCPD (Schedule 1 CPUTR) applies in all Member States and may only be modified by revision of the UCPD.
- headings in UCPD of ‘Misleading commercial practices’ (paras 1 to 23) and ‘Aggressive commercial practices’ (paras 24-31) thus apply to CPUTR.
- national court is required to interpret national law in the light of the wording and purpose of the directive.
2) construction and meaning of para 31.
- “false impression”: the prohibited practice is the creation of one of the impressions in the first part of para 31, whereas, as stated in the second, those impressions do not correspond to reality.
- words “incur a cost” do not allow C to bear the slightest cost, even if de minimis.
3) prohibition on any cost is absolute - offering a number of options does not eliminate unfair character of the practice if any such option requires C to bear a cost, even if de minimis.
4) Annex 1 UCPD (Schedule 1 CPUTR) should be given a literal interpretation.
- para 31 should not be interpreted as including an element of misleading conduct, distinct from the situations described in the second part thereof.
5) in assessing information provided to consumers, the court should take account whether it is clear and can be understood by the public targeted by the practice.
6) The ECJ’s ruling.
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Related case digests
- Office of Fair Trading v Purely Creative Ltd and others [2011] EWHC 106 (Civil) – Regs 3, 5 & 6, and para 31 of Schedule 1, CPUTR – s 215 EA.
1) purposive interpretation of legislation implementing EU Directives. 2) for the purposes of para 31, “any action ... incurring a cost”, did not include a cost which was de minimus in proportion to the value of the prize, but disclosing the actual cost (but not the cost of the prize) or avoiding the use of the words “win” or “prize” may not of itself make D’s practice fair. 3) D does not escape the purpose of para 31 by offering a no cost or de minimus option for claiming a prize if D recommends the use of another method the cost of which falsifies the assertion that the “prize” is a prize rather than a purchase. 4) “average consumer” test to be conducted, where possible, without recourse to statistics or experts. 5) no irrebuttable presumption that average consumer will read whole of a label. 6) doing nothing may constitute a transactional decision. 7) a misleading act or omission need not be the sole cause of average consumer’s decision so long as, but for it, he would not have so decided. - meaning of “likely”. 8) combined effect of all relevant misleading acts and omissions to be considered in determining if causation test satisfied in either reg 5 or 6. 9) in para (3)(a) of reg 6, “material information” is that which is necessary for the average consumer to make an informed transactional decision. 10) average consumers should not be assumed to be habitual consumers of a product. - Purely Creative Ltd and Ors v Office of Fair Trading [2011] EWCA Civ 920 – Para 31 of Schedule 1, CPUTR.
- meaning of "incurring a cost" for the purposes of para 31. - provisional view that a literal interpretation is appropriate as consistent with the purpose of a high level of consumer protection required by the EU Directive. - correct interpretation of para 31 referred to the ECJ.