In a rare reference to the EFTA Court from the Norwegian courts regarding the sale of tickets for the Olympics 2012 Games, the EFTA Court handed down judgment on 18 December 2019 accepting the UK’s arguments that Mr Gyrre’s sale of the tickets was unlawful under EU consumer protection law since he omitted material information about restrictions on the use of the tickets which were void when sold by unauthorised resellers. The EFTA Court ruled that his commercial practices in selling the tickets online were automatically unfair under Annex I of the UCPD – although the consumer obtained their ticket, it was useless and could not be used to gain access to the venue – indeed, consumers could be prosecuted for trespass.
The case also raised wider issues about the compatibility of the UK’s ban on unauthorised resellers with EU/EEA law. Mr Gyrre, a Norwegian, was prosecuted for selling tickets online all over Europe in breach of the Act and claimed the breach was contrary to the freedom of services under the EEA (equivalent to Article 56 TFEU). The UK argued that the UK’s LOCOG Act, which prohibits the resale of tickets by unauthorised sellers, was a non-discriminatory Keck selling rule or was objectively justified to protect consumers and ensure health and safety and national security at stadia. This has ongoing relevance for similar requirements for tickets sales at concerts and large international sporting events.
Mr Gyrre also claimed that his right to challenge the compatibility of the ban took precedence over consumers’ rights and meant that they had suffered no prejudice. The EFTA court held that, although Mr Gyrre might claim the prohibition was in breach of EU/EEA law, that did not affect the position of consumers. The key material time for determining unfairness of the practice and its impact on the consumer’s economic behaviour was the time of the relevant transaction. The EFTA Court upheld the UK’s argument that a subsequent determination could not affect the knowledge of the average consumer at the time of the transaction or alter their position after the event. A consumer could not be expected to know the intricacies of EU law to challenge the invalidity of his/her ticket if/when they were refused entry to the Games.
Anneli Howard represented the UK Government in its written submissions and at the oral hearing in February 2019 – with Zoe Lavery, member of the Government Legal Department, acting as Agent.
Read full judgment here.