Criminal proceedings against Canal Digital Danmark A/S.
Date: 2016-10-26
25


It should be pointed out that Directive 2005/29 is intended to establish, in accordance with recitals 5 and 6 in the preamble thereto and Article 1 thereof, uniform rules on unfair business-to-consumer commercial practices in order to contribute to the proper functioning of the internal market and to achieve a high level of consumer protection (judgment of 23 April 2009 in VTB-VAB and Galatea, C‑261/07 and C‑299/07, EU:C:2009:244, paragraph 51).
26


Thus, that directive fully harmonises those rules at the EU level. Accordingly, as Article 4 thereof expressly provides, Member States may not adopt stricter rules than those provided for in that directive, even in order to achieve a higher level of consumer protection (judgment of 23 April 2009, VTB-VAB and Galatea, C‑261/07 and C‑299/07, EU:C:2009:244, paragraph 52).
30


In those circumstances, it should be noted that the obligation, arising from a directive, to achieve the result envisaged by that directive and the duty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation in accordance with the principle of sincere cooperation in the second subparagraph of Article 4(3) TEU is binding on all the authorities of the Member States, including, for matters within their jurisdiction, the courts (see, inter alia, judgments of 10 April 1984 in von Colson and Kamann, 14/83, EU:C:1984:153, paragraph 26; of 8 September 2011 in Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 51, and of 19 April 2016 in DI, C‑441/14, EU:C:2016:278, paragraph 30).
31


It is the responsibility of the national courts, in particular, to provide the legal protection which individuals derive from the rules of EU law and to ensure that those rules are fully effective (judgment of 8 September 2011 in Rosado Santana, C‑177/10, EU:C:2011:557, paragraph 52).
32


Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU (judgments of 5 October 2004 in Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 113 and the case-law cited, and of 19 April 2016 in DI, C‑441/14, EU:C:2016:278, paragraph 31).
33


The requirement for national law to be interpreted in conformity with EU law is inherent in the system of the TFEU, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of EU law when it determines the dispute before it (judgment of 5 October 2004 in Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 114).
34


In the present case, therefore, the national court, when hearing cases which, like the present proceedings, fall within the scope of Directive 2005/29 and derive from facts postdating expiry of the period for implementing the directive, must, when applying the provisions of national law specifically intended to implement the directive, interpret those provisions so far as possible in such a way that they are applied in conformity with the objectives of the directive (judgments of 5 October 2004 in Pfeiffer and Others, C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 117, and 19 April 2016 in DI, C‑441/14, EU:C:2016:278, paragraph 31).
38


It follows from the wording of that provision that the constituent features of a misleading commercial practice, as set out in that provision, are in essence expressed with reference to the consumer as the person to whom unfair commercial practices are applied (judgment of 19 September 2013, CHS Tour Services, C‑435/11, EU:C:2013:574, paragraph 43).
39


It must be noted, in that regard, that the benchmark to be used is that of the average consumer, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors (judgment of 12 May 2011, Ving Sverige, C‑122/10, EU:C:2011:299, paragraph 22). It should be added that, as is apparent from recital 18 in the preamble to Directive 2005/29, the ‘average consumer’ test is not a statistical test and that, to determine the typical reaction of that consumer in a given case, the national courts and authorities have to exercise their own faculty of judgment.
51


It should be pointed out, first, that Article 7 of Directive 2005/29 distinguishes invitations to purchase, as defined in Article 2(i) of that directive, from other commercial practices. Whereas all commercial practices, including invitations to purchase, are subject to the requirements of Article 7(1) to (3) and (5) of that directive, only commercial practices which are categorised as invitations to purchase are covered by Article 7(4) of that directive (see, to that effect, judgment of 12 May 2011 in Ving Sverige, C‑122/10, EU:C:2011:299, paragraph 24).
52


It is for the national court to determine whether the commercial communication at issue can be categorised as an invitation to purchase within the meaning of Article 2(i) of Directive 2005/29, it being further stipulated that a commercial communication need not include an actual opportunity to purchase or appear in proximity to such an opportunity in order to constitute an invitation to purchase (see, to that effect, judgment of 12 May 2011 in Ving Sverige, C‑122/10, EU:C:2011:299, paragraph 32).
55


In so far as the price is, in principle, a determining factor in the consumer’s mind, when it must make a transactional decision, it must be considered necessary information to enable the consumer to make such a fully informed decision.
56


Furthermore, it follows from Article 7(4) of that directive that a commercial practice, which is categorised beforehand as an invitation to purchase, must contain a number of key items of information, which are listed in that article and are considered to be material, which the consumer needs in order to take an informed transactional decision. In the absence of that information, which includes the price, an invitation to purchase is therefore deemed to be misleading (see, to that effect, judgment of 12 May 2011 in Ving Sverige, C‑122/10, EU:C:2011:299, paragraph 24).
58


The national court, by taking into account, in accordance with Article 7(1) to (4)(c) of Directive 2005/29, the factual context of the commercial practice at issue, the medium used to communicate, in particular the limitations of that medium, as well as the nature and characteristics of the product in question, must therefore assess on a case-by-case basis, whether omission of material information, such as the price, caused or could cause the consumer to take a transactional decision that he would not have taken otherwise (see, to that effect, judgment of 12 May 2011 in Ving Sverige, C‑122/10, EU:C:2011:299, paragraphs 52, 53 and 58).
60


As regards the use of a television advertisement, the referring court must take account of the time constraints that apply to that communication medium. In that regard, it must also be noted that, 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 from this, therefore, that the same degree of detail cannot be required in the description of the product irrespective of the form — radio, television, electronic or paper — which the commercial communication takes (see judgment of 12 May 2011 in Ving Sverige, C‑122/10, EU:C:2011:299, paragraph 45). Moreover, it is clear that the time available for the consumer to assess the information provided to him in a television advertisement is also limited.
69


Article 7(3) of that directive, however, which applies to invitations to purchase and which allows the limitations of space and time imposed by the communication medium used to be taken into account, along with any other measures taken by the trader to make the information available to consumers, should be taken into consideration (see, to that effect, judgment of 12 May 2011 in Ving Sverige, C‑122/10, EU:C:2011:299, paragraphs 66 and 67).
70


It follows in particular from that provision that the extent of the information relating to the price is established on the basis of the nature and characteristics of the product, but also on the basis of the medium of communication used for the invitation to purchase and having regard to additional information possibly provided by the trader (judgment of 12 May 2011 in Ving Sverige, C‑122/10, EU:C:2011:299, paragraph 68).