Promotional Bonuses In Austria: Still Problematic

Despite recent rulings by the Court of Justice of the European Union (CJEU) and the Austrian Supreme Court factually invalidating the Austrian prohibition in principle on offering B2C promotional bonuses, companies intending to use this marketing tool may still face obstacles.

Under sec 9a(1)(1) of the Austrian Unfair Competition Act (UWG), unless exceptions from sec 9a(2) UWG apply, it was prohibited so far to offer bonuses in advertising products (Zugabenverbot; ie, the consumer receives other goods in addition to the main product, including the possibility to take part in a sweepstake).

The CJEU judgment

In its decision of 9 November 2010 (case C-540/08, Mediaprint/"Österreich"), the CJEU held that this B2C prohibition in principle contradicts EU law. The Annex to Directive (EC) 2005/29 on Unfair Commercial Practices (UCP-Directive) lists all principally prohibited commercial practices, and member states may not introduce additional prohibitions in principle