Vincent Deroo-Blanquart v Sony Europe Limited.
Date: 2016-09-07
28


In that regard, it must be recalled, as a preliminary point, that combined offers, which are based on the linking together of at least two different offers of products or services into a single offer, constitute commercial acts which clearly form part of an operator’s commercial strategy and relate directly to the promotion thereof and its sales development. It follows that they do indeed constitute commercial practices within the meaning of Article 2(d) of Directive 2005/29 and, consequently, come within its scope (see, to that effect, judgment of 23 April 2009, VTB-VAB and Galatea, C‑261/07 and C‑299/07, EU:C:2009:244, paragraph 50).
29


Furthermore, as recital 17 of Directive 2005/29 expressly states, only those commercial practices contained in the closed list set out in Annex I to that directive are in all circumstances regarded as unfair without a case-by-case assessment against the provisions of Articles 5 to 9 of that directive (judgment of 19 September 2013, CHS Tour Services, C‑435/11, EU:C:2013:574, paragraph 38 and the case-law cited).
30


However, the Court has held in that respect that combined offers are not included among the commercial practices listed in Annex I of Directive 2005/29 and that that directive precludes a general and pre-emptive prohibition of combined offers without any verification of their unfairness in the light of the criteria laid down in Articles 5 to 9 of that directive (judgment of 23 April 2009, VTB-VAB and Galatea, C‑261/07 and C‑299/07, EU:C:2009:244, paragraphs 57 and 62).
31


It is therefore in the light of the content and the general scheme of Articles 5 to 9 of that directive that the possible unfairness of commercial practices such as those at issue in the main proceedings must be examined (see, to that effect, judgment of 23 April 2009, VTB-VAB and Galatea, C‑261/07 and C‑299/07, EU:C:2009:244, paragraph 58).
32


In that regard, a commercial practice can be found to be unfair within the meaning of Article 5(2) of Directive 2005/29 only on the dual condition that, first, it is contrary to the requirements of professional diligence and, second, where it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product (see judgment of 19 December 2013, Trento Sviluppo and Centrale Adriatica, C‑281/12, EU:C:2013:859, paragraph 28). In that context, it should be noted that, in accordance with recital 18, that directive takes as a benchmark the average consumer, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors.
36


In that regard, the Court has already stated that, particularly if correct information is provided to consumers, a combined offer of different products or services can satisfy the requirements of fairness laid down in Directive 2005/29 (see, to that effect judgment of 23 April 2009, VTB-VAB and Galatea, C‑261/07 and C‑299/07, EU:C:2009:244, paragraph 66).
40


As regards the clarification provided to the consumer, it must be highlighted that the information, before concluding a contract, on the terms of the contract and the consequences of concluding it is of fundamental importance for a consumer. It is on the basis of that information in particular that the consumer decides whether he wishes to be bound by the terms previously drawn up by the seller or supplier (judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 70).