# C_2017006EN.01000801.xml

| 9.1.2017 | EN | Official Journal of the European Union | C 6/8 |
| --- | --- | --- | --- |

9.1.2017

EN

Official Journal of the European Union

C 6/8

---

Judgment of the Court (Fifth Chamber) of 26 October 2016 (request for a preliminary ruling from the Retten i Glostrup — Denmark) — Criminal proceedings against Canal Digital Danmark A/S

(Case C-611/14) (1)

1

((Reference for a preliminary ruling - Unfair commercial practices - Directive 2005/29/EC - Articles 6 and 7 - Advertising relating to a satellite TV subscription - Subscription price including, in addition to the monthly subscription charge, a six-monthly charge for the card required for decoding emissions - Six-monthly charge omitted or presented in a less conspicuous manner than the monthly charge - Misleading action - Misleading omission - Transposition of a provision of a directive only in the preparatory work for the national transposing legislation and not in the wording of that legislation itself))

(2017/C 006/09)

Language of the case: Danish

Referring court

Referring court

Retten i Glostrup

Party in the main proceedings

Party in the main proceedings

Canal Digital Danmark A/S

Operative part of the judgment

Operative part of the judgment

| 1. | Article 7(1) and (3) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as meaning that, for the purposes of assessing whether a commercial practice must be regarded as a misleading omission, consideration should be given to the context in which that practice takes place, in particular the limitations of the communications medium used for the purposes of that commercial practice, the limitations of time and space imposed by that communications medium and any measures taken by the trader to make the information available to consumers by other means, even though that requirement is not expressly referred to in the wording of the national legislation in question. |
| --- | --- |

1.

Article 7(1) and (3) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as meaning that, for the purposes of assessing whether a commercial practice must be regarded as a misleading omission, consideration should be given to the context in which that practice takes place, in particular the limitations of the communications medium used for the purposes of that commercial practice, the limitations of time and space imposed by that communications medium and any measures taken by the trader to make the information available to consumers by other means, even though that requirement is not expressly referred to in the wording of the national legislation in question.

| 2. | Article 6(1) of Directive 2005/29 must be interpreted as meaning that a commercial practice which consists of dividing the price of a product into several components and highlighting one of them, must be regarded as misleading, since that practice would be likely, first, to give the average consumer the false impression that he has been offered a favourable price and, secondly, cause him to take a transactional decision that he would not have taken otherwise, which it is for the referring court to ascertain, taking into account all the relevant circumstances of the main proceedings. However, the time constraints that may apply to certain communication media, such as television commercials, cannot be taken into account when assessing whether a commercial practice is misleading under Article 6(1) of that directive. |
| --- | --- |

2.

Article 6(1) of Directive 2005/29 must be interpreted as meaning that a commercial practice which consists of dividing the price of a product into several components and highlighting one of them, must be regarded as misleading, since that practice would be likely, first, to give the average consumer the false impression that he has been offered a favourable price and, secondly, cause him to take a transactional decision that he would not have taken otherwise, which it is for the referring court to ascertain, taking into account all the relevant circumstances of the main proceedings. However, the time constraints that may apply to certain communication media, such as television commercials, cannot be taken into account when assessing whether a commercial practice is misleading under Article 6(1) of that directive.

| 3. | Article 7 of Directive 2005/29 must be interpreted as meaning that, where a trader has opted to state the price for a subscription so that the consumer must pay both a monthly charge and a six-monthly charge, that practice must be regarded as a misleading omission if the price of the monthly charge is particularly highlighted in the marketing, whilst the six-monthly charge is omitted entirely or presented only in a less conspicuous manner, if such failure causes the consumer to take a transactional decision that he would not have taken otherwise. It is for the referring court to assess this, taking into account the limitations of the communication medium used, the nature and characteristics of the product and the other measures that the trader has actually taken to make material information about the product available to the consumer. |
| --- | --- |

3.

Article 7 of Directive 2005/29 must be interpreted as meaning that, where a trader has opted to state the price for a subscription so that the consumer must pay both a monthly charge and a six-monthly charge, that practice must be regarded as a misleading omission if the price of the monthly charge is particularly highlighted in the marketing, whilst the six-monthly charge is omitted entirely or presented only in a less conspicuous manner, if such failure causes the consumer to take a transactional decision that he would not have taken otherwise. It is for the referring court to assess this, taking into account the limitations of the communication medium used, the nature and characteristics of the product and the other measures that the trader has actually taken to make material information about the product available to the consumer.

| 4. | Article 7(4) of Directive 2005/29 must be interpreted as meaning that it contains an exhaustive list of the material information that must be included in an invitation to purchase. It is for the national court to determine whether the trader at issue has satisfied its duty to provide information, taking into account the nature and characteristics of the product but also the communication medium used for the invitation to purchase and additional information possibly provided by that trader. The fact that a trader provides, in an invitation to purchase, all the information listed in Article 7(4) of that directive does not preclude that invitation from being regarded as a misleading commercial practice within the meaning of Article 6(1) or Article 7(2) of that directive. |
| --- | --- |

4.

Article 7(4) of Directive 2005/29 must be interpreted as meaning that it contains an exhaustive list of the material information that must be included in an invitation to purchase. It is for the national court to determine whether the trader at issue has satisfied its duty to provide information, taking into account the nature and characteristics of the product but also the communication medium used for the invitation to purchase and additional information possibly provided by that trader. The fact that a trader provides, in an invitation to purchase, all the information listed in Article 7(4) of that directive does not preclude that invitation from being regarded as a misleading commercial practice within the meaning of Article 6(1) or Article 7(2) of that directive.

---

(1)  OJ C 73, 2.3.2015.

1

---