CHS Tour Services GmbH v Team4 Travel GmbH.
Date: 2013-09-19
27. As a preliminary point, it should be recalled that Article 2(d) of the Unfair Commercial Practices Directive gives a particularly wide definition of ‘commercial practices’: ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (see, inter alia, Joined Cases C‑261/07 and C‑299/07 VTB-VAB and Galatea  [2009] ECR I‑2949, paragraph 49; Case C‑304/08 Plus Warenhandelsgesellschaft  [2010] ECR I‑217, paragraph 36; and Case C‑540/08 Mediaprint Zeitungs- und Zeitschriftenverlag  [2010] ECR I‑10909, paragraph 17). In addition, under Article 2(c) of the directive, the term ‘product’, within the meaning of that directive, also includes services.
35. As regards Article 5 of the directive, the Court has already held on several occasions that that article, which lays down, in paragraph (1), the principle of the prohibition of unfair commercial practices, sets out the relevant criteria for the purpose of establishing whether a practice is unfair (see VTB-VAB and Galatea , paragraph 53; Plus Warenhandelsgesellschaft , paragraph 42; and Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 31).
36. Thus, in accordance with Article 5(2), a commercial practice is unfair if it is contrary to the requirements of professional diligence and materially distorts or is likely ‘to materially distort’ the economic behaviour of the average consumer with regard to the product ( VTB-VAB and Galatea , paragraph 54; Plus Warenhandelsgesellschaft , paragraph 43; and Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 32).
37. Furthermore, Article 5(4) of the Unfair Commercial Practices Directive defines two specific categories of unfair commercial practices, namely, ‘misleading practices’ and ‘aggressive practices’ corresponding to the criteria set out in Articles 6 and 7 and in Articles 8 and 9 of the directive, respectively ( VTB-VAB and Galatea , paragraph 55; Plus Warenhandelsgesellschaft , paragraph 44; and Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 33).
38. Finally, the Unfair Commercial Practices Directive sets out, in Annex I, an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) of that directive, are to be regarded as unfair ‘in all circumstances’. Consequently, as recital 17 in the preamble to the directive expressly states, those commercial practices alone can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9 of the directive ( VTB-VAB and Galatea , paragraph 56; Plus Warenhandelsgesellschaft , paragraph 45; and Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 34).
41. So far as concerns Articles 6 and 7 and Articles 8 and 9 of the directive, the Court has already held that, pursuant to those provisions, misleading or aggressive practices are prohibited where, having regard to their nature and the factual context, they cause or are likely to cause the average consumer to take a ‘transactional’ decision that he would not have taken otherwise ( VTB-VAB and Galatea , paragraph 55). The Court did not therefore make the prohibition of such practices dependent on any criterion other than those set out in those articles.
43. It is thus clear that the constituent features of a misleading commercial practice, as set out in Article 6(1) of the Unfair Commercial Practices Directive and recalled in the preceding paragraph, are in essence expressed with reference to the consumer as the person to whom unfair commercial practices are applied (see, to that effect, Case C‑122/10 Ving Sverige  [2011] ECR I‑3903, paragraphs 22 and 23), 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.
44. Indeed, the Court made no reference to that latter condition when, in Case C‑453/10 Pereničová and Perenič  [2012] ECR I‑0000, paragraphs 40 and 41, it examined to what extent a commercial practice such as that at issue in the case giving rise to that judgment fell to be regarded as ‘misleading’ pursuant to Article 6(1) of the Unfair Commercial Practices Directive.
47. That interpretation is, moreover, supported by the objective pursued by the Unfair Commercial Practices Directive of providing, as stated in recital 23 in the preamble to the directive, a high common level of consumer protection by carrying out a complete harmonisation of the rules relating to unfair business-to-consumer commercial practices, including unfair advertising (see, inter alia, Mediaprint Zeitungs- und Zeitschriftenverlag , paragraph 27), given that the interpretation upheld is such as to facilitate the effective application of Article 6(1) of that directive in a way favourable to the interests of consumers to whom false information has been given in advertising brochures distributed by a trader.