Author: Mojca Erman, LL. M (LSE)

20. December 2018, Dr. Maria Škof and Mojca Erman, LL.M (LSE) had a presentation at the compliant breakfast of the European Institute of Compliance and Ethics (EICE) on the topic "Advertising and giving free gifts from the point of view of consumer protection and protection of fair competition". presented by the Society for the Protection of Fair Competition (DVLK).

The lecture presented the area of unfair competition as well as changes in this area since 2015, when the administrative and misdemeanor protection for acts of unfair competition of the company in relation to companies was abolished. DVLK was set up to fill the gap created by this change in the company-to-business (B2B) relationship. It is an independent association set up on the model of the Wettbewerbzentrale in Germany. DVLK is committed to healthy and fair competition in the market and takes over the former job of market inspectors in the B2B relationship by alerting companies to their acts of unfair competition and providing companies with a framework for dealing with infringements. You can read more about DVLK at: http://lojalna-konkurenca.si

The speakers presented current practice in this field in Slovenia, Austria and Germany. Current examples have shown that advertising / rewarding the purchase of goods / services is not prohibited in principle, but it is necessary to respect certain restrictions in such advertising. Thus, in Slovenia, offering a free reward can be considered as an aggressive business practice if the inadmissible influence significantly reduces or could reduce the choice or behavior of the average consumer in relation to the product or would cause or may cause the consumer to make a decision on a transaction that it would not otherwise accept (eg in the case where the reward significantly exceeds the value of the goods, the court decided to obscure the consumer's true motive for buying) or if the company creates the false impression that the consumer is already without a purchase won or will receive a reward based on a particular act, although e.g. the prize does not actually exist or the action that needs to be taken to obtain the prize is cost-related (e.g., an expensive toll-free number is required to receive the prize). The current Austrian and German case law in the field of awarding was also presented. As a curiosity, e.g. highlighted a case where an insurance company in Austria offered an Iphone at the time of concluding an insurance contract and where an Austrian court ruled that such an award did not constitute an act of unfair competition, as the insurance contract involved long-term insurance and a high cost. the consumer's decision to take out insurance, as a reasonable consumer takes the time to review such an offer. Also, according to the Austrian court, the act of unfair competition does not constitute a circumstance where the insurance company puts pressure on the consumer to make a quick decision because the offer is limited. According to the Austrian court, a reasonable consumer will pay a lot of attention to a multi-year insurance contract and will not make an impulsive decision, but will be clear that it is an advertisement. Relevant case law in the field of furniture store advertising was also presented, where the campaign deadlines are extended (eg the trader states that due to the great success the campaign is being "extended for the last time") or it is advertised that the campaign is valid "only until stocks are used up". or certain important information is withheld or a quality certificate that the trader does not actually have is displayed. The field of advertising via internet platforms and responsibility for statements on the Internet were also presented, as well as an interesting example of the Müller drugstore, where Müller published an advertisement that discount vouchers for other drugstores can also be redeemed in Müller stores.

The lecture ended with answers to the question of the participants. The standard of the average consumer, the relationship between fair competition and other areas (eg protection of personal data, industrial property rights) and the role of similar bodies (such as DVLK) abroad were explained. It was again established that the area of unfair competition is a "lively" and interesting area where it is necessary to take into account the circumstances of an individual case and where case law places restrictions on permitted actions and draws a line between fair and unfair practices.

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