Autorità Garante della Concorrenza e del Mercato v Wind Tre SpA and Vodafone Italia SpA.
Date: 2018-09-13
39


In that regard, it should be noted, at the outset, that it is not contested that the disputes in the main proceedings concern business to consumer commercial practices within the meaning of Article 2(d) of Directive 2005/29 or that the services at issue fall within the concept of ‘product’ as defined in Article 2(c). In order to answer these first and second questions, it is therefore necessary to establish whether conduct such as that at issue in the main proceedings falls within the concept of ‘unfair commercial practices’ within the meaning of Article 5 of Directive 2005/29.
40


Article 5(2) sets the criteria by which it is to be determined whether a commercial practice is unfair and Article 5(4) states that, in particular, commercial practices will be unfair which are ‘misleading’ within the meaning of Articles 6 and 7 of that directive or ‘aggressive’ within the meaning of Articles 8 and 9 of that directive. Article 5(5) provides, in addition, that Annex I of the same directive contains a list of commercial practices which are in all circumstances considered unfair. In that regard, recital 17 of Directive 2005/29 expressly states that the practices listed in that annex will be deemed to be unfair without having to be subject to a case-by-case assessment against the provisions of Articles 5 to 9 (also see, to that effect, judgment of 7 September 2016, Deroo-Blanquart, C‑310/15, EU:C:2016:633, paragraph 29 and the case-law cited).
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In that regard, it should be noted that Article 8 of Directive 2005/29 defines the concept ‘aggressive commercial practice’ in particular by the fact that it impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product. It follows that for a service to be solicited the consumer must have made a free choice. That supposes, in particular, that the information provided by the trader to the consumer is clear and adequate (see, by analogy, judgment of 18 October 2012, Purely Creative and Others, C‑428/11, EU:C:2012:651, paragraph 53).
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It should also be recalled that the information provided, before the conclusion of a contract, on the terms of the contract and the consequences of concluding it is of fundamental importance for a consumer (judgment of 7 September 2016, Deroo-Blanquart, C‑310/15, EU:C:2016:633, paragraph 40 and the case-law cited).
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In addition, since the price is, in principle, a determining factor in the consumer’s mind when it must make a transactional decision, it must be considered information necessary to enable the consumer to make such a fully informed decision (judgment of 26 October 2016, Canal Digital Danmark, C‑611/14, EU:C:2016:800, paragraph 55).
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Moreover, it should be borne in mind that the meaning of consumer is of the utmost importance for the purposes of interpreting the provisions of Directive 2005/29. According to 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 (judgment of 12 May 2011, Ving Sverige, C‑122/10, EU:C:2011:299, paragraph 22).
54


The interpretation reached in the previous paragraph is, furthermore, supported by the objective pursued by Directive 2005/29. According to Article 1 of that directive, its objective, inter alia, is to achieve a high level of consumer protection. That objective, which is to protect consumers in full against unfair commercial practices, 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 (see, to that effect, judgment of 16 April 2015, UPC Magyarország, C‑388/13, EU:C:2015:225, paragraph 53). In a sector as technical as that of electronic communications by mobile telephony, it cannot be denied that there is a major imbalance of information and expertise between the parties.
58


In that regard, it should be borne in mind that Article 3(4) of Directive 2005/29 provides that, in the case of conflict between the provisions of that directive and other EU rules regulating specific aspects of unfair commercial practices, the latter are to prevail and apply to those specific aspects. As a result, as confirmed by recital 10, that directive applies only when there are no specific EU provisions regulating specific aspects of unfair commercial practices (see, inter alia, judgment of 16 July 2015, Abcur, C‑544/13 and C‑545/13, EU:C:2015:481, paragraph 79).
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The Court has already noted that although, in carrying out their tasks, the NRAs, in accordance with Article 8(4)(b) of the Framework Directive, are required to promote the interests of citizens of the Union by ensuring a high level of protection for consumers, the fact remains that the Framework Directive and the Universal Service Directive do not provide for full harmonisation of consumer-protection aspects (judgment of 14 April 2016, Polkomtel, C‑397/14, EU:C:2016:256, paragraph 32 and the case-law cited).