Case C‑388/13

Nemzeti Fogyasztóvédelmi Hatóság

(Request for a preliminary ruling from the Kúria)

‛Reference for a preliminary ruling — Directive 2005/29/EC — Unfair commercial practices — Erroneous information provided by a telecommunications undertaking to one of its subscribers which has resulted in additional costs for the latter — Classification as a ‘misleading commercial practice’’

Summary — Judgment of the Court (First Chamber), 16 April 2015

Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market must be interpreted as meaning that the communication, by a professional to a consumer, of erroneous information must be classified as a ‘misleading commercial practice’, within the meaning of that directive, even though that information was produced on only one occasion and concerned only one single consumer. Neither the definitions set out in Articles 2(c) and (d), 3(1) and 6(1) of Directive 2005/29 nor the latter, considered as a whole, contain any indication that the act or omission on the part of the professional must be recurrent or must concern more than one consumer. In the light of the need to protect consumers, which underlies that directive, those provisions cannot be interpreted as imposing conditions of that kind where they do not even set out such conditions explicitly. Furthermore, the fact that such conduct is allegedly unintentional, the fact that the additional cost imposed on the consumer is insignificant and that the consumer could himself have obtained the correct information are also entirely irrelevant. As is apparent from the use of the word ‘likely’, Article 6 of Directive 2005/29 is essentially preventive in nature, with the result that, for the purposes of the application of that article, it suffices that the professional communicated objectively erroneous information which was capable of adversely influencing the consumer’s commercial decision. Moreover, the objective of that directive relies on the assumption that, in relation to a trader, the consumer is in a weaker position, particularly with regard to the level of information, in that the consumer must be considered to be economically weaker and less experienced in legal matters than the other party to the contract. (see paras 41-43, 47, 49, 50, 53, 54, 60, operative part 1)

Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market leaves the Member States a margin of discretion as to the choice of national measures intended, in accordance with Articles 11 and 13 of that directive, to combat unfair commercial practices, on condition that they are adequate and effective and that the penalties thus laid down are effective, proportionate and dissuasive. It follows that it is for the Member States to provide for an appropriate system of sanctions with regard to professionals who employ unfair commercial practices, while ensuring that those sanctions comply, in particular, with the principle of proportionality. It is in this context that due account could be taken of factors such as the frequency of the practice complained of, whether or not it is intentional, and the degree of harm caused to the consumer. In that regard, where the national court finds the existence of a misleading commercial practice, it is for that court to assess, taking account of all of the circumstances of the case pending before it, whether the consequences resulting, pursuant to the national legislation implementing Directive 2005/29, from the prohibition of the misleading commercial practice used in the present case by the professional comply with the requirements of that directive and, more particularly, with the principle of proportionality. (see paras 57-59)