European Union: ECJ Finds Spanish General Prohibition On Selling At A Loss Incompatible With EU Law

Last Updated: 18 December 2017
Article by Koen T’Syen

On 19 October 2017 the Court of Justice of the European Union (the "ECJ") held that Directive 2005/29/EU concerning unfair business-to-consumer commercial practices (the "Directive") outlaws Spanish legislation which establishes a general prohibition of selling at a loss and provides for different criteria for derogating from same (ECJ, 19 October 2017, Case C-295/16, Europamur Alimentación SA v. Dirección General de Comercio y Protección del Consumidor de la Comunidad Autónoma de la Región de Murcia).

The ECJ delivered its judgment in response to a request for a preliminary ruling from the Administrative Court of Murcia in a dispute between Europamur Alimentación SA ("Europamur") and the Regional Consumer Affairs Authority of Murcia (the "Authority"). Europamur is a wholesaler which provides food and household products to smaller retailers who participate in a collective purchasing scheme. The Authority fined Europamur EUR 3,000 for selling certain goods to its retailer clients at a loss, and Europamur appealed this administrative penalty on the grounds that the Spanish legislation allowing for the fine should have been amended when the Directive was transposed into Spanish law. The Administrative Court of Murcia referred two related questions of interpretation to the ECJ, essentially asking whether the Directive allows for national legislation which (i) contains a general prohibition on offering for sale or selling goods at a loss; and (ii) lays down grounds for derogation from that prohibition that are based on criteria which do not appear in the Directive.

The Spanish legislation, Article 14 of Ley 7/1996 de Ordenación del Comercio Minorista (the "Law regulating retail commerce"), prohibited "selling or offering to sell to the public at a loss". Two exceptions were permitted to this general principle, namely if the objective of the loss-making practice was to match the prices of competitors who had the ability to affect the seller's sales, or if the sale involved perishable goods. A later amendment to the Law regulating retail commerce clarified that this prohibition applied equally to business-to-business (i.e., wholesale) sales as to business-to-consumer (i.e., retail) sales.

Article 5 of the Directive provides for a prohibition of unfair commercial practices including those that are contrary to the requirements of professional diligence and which "materially distort or [are] likely to distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed". Annex I to the Directive includes a list of unfair commercial practices that apply uniformly across the EU. The list does not include a general prohibition on selling at a loss.

The ECJ first declared that it has jurisdiction in the case. In principle, the Directive applies to business-to-consumer relationships – the aim being to prohibit practices which directly harm consumers' economic interests rather than regulate practices between traders. Nonetheless, the ECJ has jurisdiction to give a preliminary ruling "in situations where the facts in the main proceedings [fall] outside the scope of EU law, but where the provisions of EU law [are] rendered applicable by national law, which, in dealing with situations outside the scope of EU law, follow the same approach as that provided for by the latter". In other words, the Spanish legislation sought to transpose the Directive by extending the prohibition more broadly than necessary and therefore must be interpreted in a manner consistent with EU law.

The ECJ then proceeded to find that the Directive expressly sought to harmonise fully the rules relating to business-to-consumer commercial practices across the EU. This means that Member States must not adopt measures that are stricter than those provided for in the Directive. This is the case even if the national legislation aims to achieve a higher level of consumer protection. It was not contested that the Spanish legislation prohibited selling at a loss without the court having to consider the specific facts of the case in light of the criteria set forth in Article 5 of the Directive, such as the need to establish that the practice would distort the economic behaviour of consumers.

For these reasons, the ECJ held that the Spanish legislation established a stricter prohibition of selling at a loss than that provided for by the Directive and deviated from the Directive's set criteria for a derogation from that prohibition. As a result, the national legislation was found to be incompatible with EU law.

This judgment is reminiscent of the ECJ's order of 7 March 2013 in Case C-343/12, Euronics Belgium CVBA v. Kamera Express BV and Kamera Express Belgium BVBA. In this order, the ECJ held that the Directive precluded the general prohibition of selling at a loss as laid down in Article 101, §1 of the now repealed Law of 6 April 2010 on market practices and consumer protection (Wet van 6 april 2010 betreffende marktpraktijken en consumentenbescherming/Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur – the "Law") "in so far as that provision pursues objectives relating to consumer protection" (See VBB on Belgian Business Law, Volume 2013, No. 3, p. 15, available at Following the ECJ's order, Article 101, §1 of Law was replaced by Article VI.116, §1 of the Code of Economic Law (Wetboek van Economish Recht/Code de droit économique). This provision re-establishes the general prohibition of selling at a loss, but expressly on the grounds of ensuring fair market practices "between companies". It remains to be seen whether such an express objective is sufficient to exclude the Belgian general prohibition of selling at a loss from the scope of the Directive.

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
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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