Opinion of the Advocate General — ECLI:EU:C:2011:47
Date: 2011-02-03
Language of the case: Swedish
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary of the Judgment 1. Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29 – Invitation to purchase (European Parliament and Council Directive 2005/29, Arts 2(i) and 7(4)) 2. Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29 – Invitation to purchase (European Parliament and Council Directive 2005/29, Art. 2(i)) 3. Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29 – Invitation to purchase (European Parliament and Council Directive 2005/29, Art. 2(i)) 4. Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29 – Misleading omissions (European Parliament and Council Directive 2005/29, Art. 7(4)(a)) 5. Approximation of laws – Unfair business-to-consumer commercial practices – Directive 2005/29 – Misleading omissions (European Parliament and Council Directive 2005/29, Art. 7(4)(c)) 1. The words ‘thereby enables the consumer to make a purchase’ in Article 2(i) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directives 84/450, 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 must be interpreted as meaning that an invitation to purchase exists as soon as the information on the product advertised and its price is sufficient for the consumer to be able to make a transactional decision, without it being necessary for the commercial communication also to offer an actual opportunity to purchase the product or for it to appear in proximity to and at the same time as such an opportunity. An invitation to purchase is a specific form of advertising to which is attached a stricter obligation to provide information under Article 7(4) of Directive 2005/29. A non-restrictive interpretation of the concept of invitation to purchase is the only one consistent with one of the objectives of that directive which, according to Article 1 thereof, is that of achieving a high level of consumer protection. Consequently, the words ‘thereby enables the consumer to make a purchase’ must be analysed not as adding a further requisite condition to categorisation as an invitation to purchase, but as stating the purpose of the requirements set out with regard to the characteristics and the price of the product so that the consumer has sufficient information to enable him to make a purchase. (see paras 28-30, 33, operative part 1) 2. Article 2(i) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directives 84/450, 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 must be interpreted as meaning that the requirement relating to the indication of the price of the product may be met if the commercial communication contains an entry-level price, that is to say the lowest price for which the advertised product or category of products can be bought, while the advertised product or category of products are available in other versions or with other content at prices which are not indicated. It is for the national court to ascertain, on the basis of the nature and characteristics of the product and the commercial medium of communication used, whether the reference to an entry-level price enables the consumer to take a transactional decision. (see para. 41, operative part 2) 3. Article 2(i) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directives 84/450, 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 must be interpreted as meaning that a verbal or visual reference to the product makes it possible to meet the requirement relating to the indication of the product’s characteristics, and that includes a situation where such a verbal or visual reference is used to designate a product which is offered in many versions. In that regard, in so far as Article 2(i) of Directive 2005/29 requires the characteristics of the product to be indicated in a way appropriate to the means used, the commercial medium of communication used must be taken into consideration for that purpose. The same degree of detail cannot be required in the description of a product irrespective of the form – radio, television, electronic or paper – which the commercial communication takes. A verbal or visual reference may enable the consumer to form an opinion on the nature and characteristics of the product for the purpose of taking a transactional decision, and that includes a situation where such a reference designates a product which is offered in many versions. It is for the national court to ascertain, on a case-by-case basis, taking into account the nature and characteristics of the product and the medium of communication used, whether the consumer has sufficient information to identify and distinguish the product for the purpose of taking a transactional decision. (see paras 45-46, 49, operative part 3) 4. Article 7(4)(a) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directives 84/450, 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 must be interpreted as meaning that it may be sufficient for only certain of a product’s main characteristics to be given and for the trader to refer in addition to its website, on the condition that on that site there is essential information on the product’s main characteristics, price and other terms in accordance with the requirements in Article 7 of that directive. In that regard, Article 7(4)(a) of Directive 2005/29 refers to the main characteristics of the product without however defining that notion or providing an exhaustive list. It is however stated that account must be taken, first, of the medium of communication used and, secondly, of the product. That provision must be read in conjunction with Article 7(1) of that directive, according to which the commercial practice must be assessed having regard to its factual context and the limitations of the medium of communication used. Furthermore, Article 7(3) of that directive provides expressly that account is to be taken, in deciding whether information has been omitted, of the limitations of space and time of the medium of communication used and of the measures taken by the trader to make that information available to consumers by other means. Consequently, the extent of the information relating to the main characteristics of a product which has to be communicated, by a trader, in an invitation to purchase, must be assessed on the basis of the context of that invitation, the nature and characteristics of the product and the medium of communication used. It is for the national court to assess, on a case-by-case basis, taking into consideration the abovementioned criteria, whether a reference only to certain main characteristics of the product enables the consumer to take an informed transactional decision. (see paras 52-56, 58-59, operative part 4) 5. Article 7(4)(c) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directives 84/450, 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 must be interpreted as meaning that a reference only to an entry-level price in an invitation to purchase cannot be regarded, in itself, as constituting a misleading omission. A reference only to an entry-level price may, therefore, be justified in situations where the price cannot reasonably be calculated in advance, having regard, inter alia, to the nature and characteristics of the product. It is for the national court to ascertain whether a reference to an entry-level price is sufficient for the requirements concerning the reference to a price, such as those set out in Article 7(4)(c) of Directive 2005/29, to be considered to be met. That court will have to ascertain, inter alia, whether the omission of the detailed rules for calculating the final price prevents the consumer from taking an informed transactional decision and, consequently, leads him to take a transactional decision which he would not otherwise have taken. It is also for the national court to take into consideration the limitations forming an integral part of the medium of communication used; the nature and the characteristics of the product and the other measures that the trader has actually taken to make the information available to consumers. (see paras 64, 69-72, operative part 5)