Austria: More Flexibility For Promotional Campaigns

In a series of recent decisions, the European Court of Justice (ECJ) held that national provisions laying down a general prohibition on sales with bonuses are precluded under the Unfair Commercial Practices Directive.1 The respective Austrian provision has been found as precluded by the Directive.

"Buy 2, get the 3rd for free!"

"Get a free laptop with your newspaper subscription!"

"Get a ten Euro-purchase voucher when buying our product!"

"Get a free car-wash with every 10th full tank!"

"Get a free mobile phone with every new network contract!"

1. Prohibition of Sales with Bonuses

In the past, legislatures saw a need to prohibit sales with bonuses. The objectives were threefold:

  • Protection of competitors, as weaker competitors may not be able to give the same bonuses.
  • Protection of consumers, because an effective price/value comparison may be tainted.
  • Protection of the fairness of competition in general, because consumers should not be attracted by bonuses but make their purchase decision according to the value or quality of the product or service.

In Austria, a very strict prohibition of sales with bonuses with only very limited exceptions is provided for under unfair competition law (Sec 9a(1)(1) Austrian Act against Unfair Competition; UWG).

In 2001, the European Commission made an attempt to regulate sales promotions in the EU with a proposal for a regulation concerning sales promotions in the internal market.2 Yet, in 2005, the European Commission withdrew such proposal.3 Consequently, many of the interested circles believed that sales with bonuses will not be addressed by EU-law in the near future. They erred:

In 2005, a directive concerning unfair business-to-consumer commercial practices in the internal market (the above-cited Unfair Commercial Practices Directive) was enacted. Such directive provides for a broad regulation of activities, which are dealt with by national legislations concerning unfair competition. It sets out the criteria on the basis of which unfair commercial practices are to be prohibited. The directive further expressly provides that member states may not adopt stricter rules than those provided for in the directive, even in order to archive a higher level of consumer protection.4

2. The ECJ Cases

In a line of cases5 the ECJ was asked by national courts for a preliminary ruling on whether the Unfair Commercial Practices Directive applies to sales with bonuses and whether general prohibitions on sales with bonuses are precluded under the directive.

The ECJ held that, indeed, sales with bonuses are regulated by the Unfair Commercial Practices Directive and that national legislation must comply with the conditions set forth in the Unfair Commercial Practices Directive.6 According to the Directive, a commercial practice is unfair if it is contrary to the requirements of professional diligence and materially distorts or is likely to materially distort the economic behavior of the average consumer with regard to the product. Such practices are prohibited where, having regard to their nature and the factual context, they cause or are likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

Only certain specific practices, contained in an exhaustive list annexed to the directive, are regarded as unfair "in all circumstances". Consequently, except for the annexed specific commercial practices, for a finding of a prohibition of a commercial practice as unfair a case-by-case assessment applying the criteria set forth in the directive must be made. Consequently, in the first case decided in April 2009, the ECJ held that a Belgian statute imposing a general prohibition of combined offers made by a vendor to a consumer is precluded by the directive.7

In a next step, the ECJ was asked by reference of the German Bundesgerichtshof whether a general prohibition falls within the scope of the directive even though its main purpose is the protection of competitors, not consumers. The ECJ held that as long as the protection of consumers is also intended by a statute, such falls within the scope of the directive. Therefore, the ECJ held the German general prohibition of commercial practices under which the participation of consumers in a price competition or lottery is made conditional on the purchase of goods or use of services is precluded by the directive.8

Finally, in the latest reference brought forward by the Austrian Supreme Court, the general prohibition of sales with bonuses provided by sec 9a(1)(1) UWG was at issue. The statute was also held to be precluded by the directive. The justification brought forward by the Austrian government that, in the case at issue, the Austrian statute essentially pursues the maintenance of pluralism of the press in Austria, was not accepted by the ECJ.9

3. Consequences

As a consequence of the decisions of the ECJ, the Austrian general prohibition of sales with bonuses should no longer be applied by the Austrian courts. It is now the task of the Austrian legislator to amend the current provision as soon as possible so that it complies with the requirements imposed by the Unfair Commercial Practices Directive.10

This brings to an end a long-standing uncertainty for companies promoting their products or services in Austria. The general prohibition of sales with bonuses in sec 9a(1)(1) UWG theoretically outlawed most of the sales promotions common internationally. In practice, notwithstanding the legal prohibition, such promotions widely took place in Austria; the law was disregarded on a large scale. This may have also been caused by the fact that the criteria bringing a sales promotion under the general prohibition could not be understood anymore. Further, the application of the prohibition and the narrow exceptions created by the Austrian courts during the last years were often not sound. Also, in certain cases the general prohibition had already been weakened by the Austrian Supreme Court through a case-by-case creation of exceptions.

This unfavorable situation for doing business in Austria has now finally ended. In future, sales with bonuses will have to be assessed according to the general rules of unfair competition law.

A shorter version of this article was originally published in the schoenherr roadmap`11 - if you would like to receive a complimentary copy of this publication, please visit:

This article was originally published in the schoenherr roadmap`10 - if you would like to receive a complimentary copy of this publication, please visit:


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.

2. COM (2001) 546 final, amended COM (2002) 585 final.

3. COM (2005) 462 final.

4. Art 4 Unfair Commercial Practices Directive.

5. ECJ 23 April 2009, C-261/07 and C-299/07 VTB-VAD NV and Galatea; ECJ, 14 January 2010, C-304/08 – Zentrale zur Bekämpfung unlauteren Wettbewerbs eV; ECJ, 9 November 2010, C-540/08 – Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG.

6. ECJ VTB-VAD NV and Galatea, no 50 .

7. ECJ VTB-VAD NV and Galatea.

8. ECJ Zentrale zur Bekämpfung unlauteren Wettbewerbs eV.

9. ECJ Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG.

10. At the time of writing, no proposal for amending the Austrian law has been published.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions