Case C‑611/14

Criminal proceedings

against

Canal Digital Danmark A/S,

(Request for a preliminary ruling from the Retten i Glostrup)

‛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)’

Summary — Judgment of the Court (Fifth Chamber), 26 October 2016

Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Misleading omission — Concept — Commercial practice which consists of dividing the price of a product into several components by highlighting one of them and omitting the others or presenting them in a less conspicuous manner — Included — Conditions — Assessment by the national court

Article 7(1) and (3) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directive 84/450 and Directives 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 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. In that context, it is for the national court, when hearing a case which falls within the scope of Directive 2005/29 and derives from facts postdating expiry of the period for implementing the directive, when applying the provisions of national law specifically intended to implement the directive, to interpret those provisions so far as possible in such a way that they are applied in conformity with the objectives of the directive. (see paras 34, 35, operative part 1)

Article 6(1) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directive 84/450 and Directives 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 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 make a transactional decision that he would not have made 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. Where the price of a product, as defined in Article 2(c) of Directive 2005/29, is divided into several components, one being particularly emphasised in the marketing, while the other, which nevertheless constitutes an inevitable and foreseeable element of the price, is completely omitted or is presented less prominently, an assessment should be made, in particular, whether that presentation is likely to lead to a mistaken perception of the overall offer. This will be the case, in particular, if the average consumer is likely to have the mistaken impression that he is offered a particularly advantageous price, due to the fact that he could believe, wrongly, that he only had to pay the emphasised component of the price, which it is for the national court to assess. Furthermore, where the price is divided into several components, it is particularly relevant, when assessing whether the commercial practice at issue is likely to cause an average consumer to take a transactional decision that he would not have taken otherwise, that the omitted or less visible component represents a significant element of the total price. (see paras 43, 44, 47, 49, operative part 2)

Article 7 of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Directive 84/450 and Directives 97/7, 98/27 and 2002/65 and Regulation No 2006/2004 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 national court to assess, 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. Under Article 2(i) of that directive, in relation to invitations to purchase, the characteristics of the product must be indicated in a way appropriate to the means used. It follows that the same degree of detail cannot be required in the description of a product, irrespective of the form which the commercial communication takes. Furthermore, according to Article 7(3) of that directive, 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. However, those limitations of time and space must be weighed against the nature and characteristics of the product in question, in order to determine whether the trader concerned in fact found it impossible to include the information at issue or to provide it in a clear, intelligible and unambiguous manner in a commercial communication. It follows that, where, having regard to the intrinsic characteristics of the product at issue and the limitations relating to the communication medium used, it is impossible for a trader to provide all the material information concerning a product, the commercial practice may mention only some of them, if the trader refers to its website for the rest, provided that that website contains the material information relating to the main characteristics of that product, the price and other conditions, as required under Article 7 of Directive 2005/29. (see paras 60-64, operative part 3)