Opinion of the Advocate General — ECLI:EU:C:2013:403
Date: 2013-06-13
Language of the case: German
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (First Chamber), 19 September 2013 1. Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Scope — Information relating to the reservation of a certain number of establishments exclusively through a travel agency — Included (European Parliament and Council Directive 2005/29, Art. 2(d)) 2. Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Unfair commercial practice — Concept (European Parliament and Council Directive 2005/29, Recitals 13 and 17, Arts 5 to 9, and Annex I) 3. Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Misleading commercial practice — Concept — Relevant criteria to be taken into consideration — Practice satisfying all the criteria set out in Article 6 of the directive — Not necessary also to determine whether that practice is contrary to the requirements of professional diligence (European Parliament and Council Directive 2005/29, Arts 5(1) and (2)(a), and 6(1)) 1. See the text of the decision. (see paras 27-30) 2. See the text of the decision. (see paras 35-41) 3. Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market must be interpreted as meaning that, if a commercial practice satisfies all the criteria specified in Article 6(1) of that directive for being categorised as a misleading practice in relation to the consumer, it is not necessary to determine whether such a practice is also contrary to the requirements of professional diligence as referred to in Article 5(2)(a) of the directive in order for it legitimately to be regarded as unfair and, therefore, prohibited in accordance with Article 5(1) of the directive. The constituent features of a misleading commercial practice, as set out in Article 6(1) of Directive 2005/29 are in essence expressed with reference to the consumer as the person to whom unfair commercial practices are applied and correspond in substance to the second condition characterising a practice of that nature, as set out in Article 5(2)(b) of that directive. By contrast, there is no mention in Article 6(1) of the condition, set out in Article 5(2)(a) of the directive and relating to the practice’s being contrary to the requirements of professional diligence, which relates to the sphere of the trader. Such an interpretation is therefore required, having regard both to the wording and to the structure of Articles 5 and 6(1) of that directive, and to its general scheme, and is the only one capable of preserving the effectiveness of the specific rules laid down in Articles 6 to 9 of the Unfair Commercial Practices Directive. (see paras 43, 45, 46, 48, operative part)