Case Law: Vereinigte Familiapress

4 Colum. J. Eur. L. 172 (1998)

Elke Ballon. Assistant, Institute for European Economic Law, Katholieke Universiteit Leuven, Advocate.

Case C-368/95. Vereinigte Familiapress Zeitungsverlag- und vertriebs GmbH v.Heinrich Bauer Verlag (Eur. Ct. J. June 26, 1997) (not yet reported).

Measures having equivalent effect to quantitative restrictions; Distribution of periodicals; Prize competitions; National prohibition

Facts and Procedure

Heinrich Bauer Verlag, a newspaper publisher established in Germany, publishes the weekly magazine Laura, which it distributes both in Germany and in Austria. The February 22, 1995 issue contained a crossword puzzle. Readers sending in the correct solution were entitled to be entered in a drawing for two prizes of DM 500. In the same issue there were two more puzzles, for prizes of DM 1000 and DM 5000 respectively, which were also to be awarded by drawing lots among the persons sending in the correct answers. Subsequent issues invited readers to play similar games and each issue indicated that there would be more puzzles the following week. An Austrian newspaper publisher, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH (Familiapress), brought proceedings against Heinrich Bauer Verlag to enjoin the latter from selling in Austria publications offering readers the chance to take part in games for prizes, alleging that this practice is contrary to the Austrian Law on Unfair Competition (Gesetz Ober den unlauteren Wettbewerb 1992, ‘UWG’). Paragraph 9a(l)(1) of the Austrian UWG contains a general prohibition on offering consumers free gifts linked to the sale of goods or the supply of services.’ Because under German law, there is no provision to the same effect, Laura was lawfully marketed in Germany.

The Handelsgericht Wien (Commercial Court of Vienna) sought a preliminary ruling from the ECJ on the question whether this Austrian general prohibition is contrary to EC law-more specifically, whether it is contrary to Article 30 of the Treaty.