Promotional Bonuses – Anything Goes?

Following the abolishment of the Austrian prohibition of promotional bonuses, the admissibility of such sales promotion activities businesses is still confronted with certain pitfalls.

Abolishment of the per-se prohibition on promotional bonuses

Until the beginning of 2013, the Austrian Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG) in its Sec 9a contained a strict per se prohibition of announcing the intent to grant promotional bonuses to customers (Zugaben, meaning provision of free goods in addition to a main product). Following CJEU decision C-540/08, Mediaprint/Österreich, of 9 November  2010, which declared the Austrian per se prohibition (at least as with regard to B2C relationships) to be non-compliant with EU law (ie contradicting Directive (EC) 2005/29 on Unfair Commercial Practices, UCP-Directive), the Austrian Supreme Court no longer applied the provision of Sec 9a UWG to B2C cases. However, the Court still applied it in pure B2B