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Deadlines: Motivation departement: 1 February 2019 Written observations: 18 March 2019 (ultimate deadline)
Keywords : unfair business-to-consumer commercial practices;
- EEA Agreement;
- Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (hereinafter: SCA);
- Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market;
Facts of the case:
The case concerns the validity of the decision of 19.02.2013 of the Norwegian Market Council, adopted under Sections 43 and 6 of the Marketing Act, for infringement of the Regulation on unfair commercial practices. That decision imposed an administrative fine on the appellant, Mr AG, and Mr B, for infringements in connection with the marketing and resale by the company Euroteam AS of tickets for the Olympic Games in London in 2012. Appellant, AG, was the chairman and sole owner of Euroteam until the company went bankrupt on 06.09.2012. The company purchased tickets from various sources and resold them to professional operators and individuals in and outside Norway. On 08.06.2011, Euroteam received a letter from the Norwegian Olympic and Paralympic Committee and Confederation of Sports (NIF) stating that only authorised dealers were permitted to engage in the sale of tickets for the Olympic Games. Tickets transferred contrary to the rules were invalid and the use of them was considered an ‘unlawful interference and a criminal violation of property rights’. It was further stated that the resale of tickets for the event was a criminal offence under Section 31 of the London Olympic Games and Paralympic Games Act 2006. On 06.07.2012, the IOC, London Organising Committee of the Olympic Games and Paralympic Games Ltd. and NIF filed a complaint against Euroteam and associated companies with the Norwegian Consumer Ombudsman. The British High Court ordered Euroteam and Mr G to refrain from offering tickets for the London Olympic Games 2012 for sale on a number of websites, and from giving the impression that they could lawfully sell tickets for that event. On 17.08.2012, Mr G received notice from the Norwegian Consumer Ombudsman that the matter would be referred to the Norwegian Market Council. In its decision of 19.02.2013, the Market Council levied an administrative fine of NOK 200.000,- on AG for violation of Section 6 of the Marketing Act. On 26.04.2017, Mr G brought an action against the Market Council’s decision before Oslo District. Oslo District Court delivered judgment in which AG is ordered to pay the costs of the case to the Norwegian Government in the sum of NOK 62.350,-. An appeal was lodged against the District Court’s judgment before Borgarting Court of Appeal which, on 15.06.2018, decided to make a reference to the EFTA Court.
Request for an advisory opinion:
1. Is point 9 of Annex I to Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices in the internal market to be interpreted as covering situations where a trader states or otherwise creates the impression that a product can legally be sold where there is a legislative provision, such as in the London Olympic Games and Paralympic Games Act 2006, in an EEA State which provides that the product cannot legally be sold and which is enforced under national law?
a. Does it have a bearing on this assessment that the prohibition applies in the EEA State where the product is to be used but not in the State where the product is sold?
b. Does it have a bearing on this assessment if, after the sale, it is determined that the prohibition was contrary to EEA law?
2. If a determination of whether the prohibition under national law is contrary to EEA law rules has a bearing on the assessment under point 9 of Annex I to Directive 2005/29/EC:
a. Does the prohibition of resale of such tickets as in the London Olympic Games and Paralympic Games Act 2006 constitute regulation of commercial practices falling within the scope of Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market?
b. Does the Directive preclude a national prohibition of resale, such as provided for in the London Olympic Games and Paralympic Games Act 2006, where such a prohibition safeguards not only consumer protection considerations but also other considerations, such as security?
c. If it is necessary to ascertain whether restrictions on the resale of tickets for sporting events such as the Olympic Games are contrary to the fundamental freedoms under the EEA Agreement, including Articles 11 and 36 EEA, which criteria should the national court use as a basis for its assessment of whether such restrictions are suitable and necessary for achieving legitimate objectives such as consumer protection and security?
Cited (recent) case-law:
Policy area: EZK