VTB-VAB NV v Total Belgium NV (C-261/07) and Galatea BVBA v Sanoma Magazines Belgium NV (C-299/07).
Date: 2009-04-23
29. VTB calls into question the admissibility of the question referred, on the ground that it concerns the interpretation of a directive the period for the transposition of which, which ended on 12 December 2007, had not yet expired at the date on which the decision to refer was made, that is to say, 24 May 2007.
30. For the same reasons, and without expressly raising an objection of inadmissibility, the Belgian and Spanish Governments are of the view that the Directive is not applicable to the dispute in the main proceedings. In particular, in the view of the Spanish Government, a national provision cannot be declared by a court to be inapplicable on the ground that it infringes the Directive so long as the period set for the transposition thereof has not yet expired.
31. Those arguments cannot, however, be accepted.
32. In that regard, it should be noted that, according to settled case-law, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is bound, in principle, to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 38; Case C‑18/01 Korhonen and Others  [2003] ECR I‑5321, paragraph 19; and Case C‑295/05 Asemfo  [2007] ECR I‑2999, paragraph 30).
33. It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases and, in particular, where it is quite obvious that the interpretation which is sought of the provisions of Community law referred to in the questions bears no relation to the actual facts of the main action or to its purpose (see, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 61, and Case C‑212/06 Gouvernement de la Communauté française et gouvernement wallon  [2008] ECR I‑1683, paragraph 29).
34. In this case, it is not obvious that the present question referred is irrelevant in the light of the decision which the national court is called upon to take.
35. Firstly, it follows from the case-law that not only the national provisions specifically intended to transpose a directive but also, from the date of that directive’s entry into force, the pre-existing national provisions capable of ensuring that the national law is consistent with it must be considered to fall within the scope of that directive (see, to that effect, Case C‑81/05 Cordero Alonso  [2006] ECR I‑7569, paragraph 29).
36. While it is true that, in the main proceedings, the Law of 5 June 2007 amending the 1991 Law and intended formally to transpose the Directive is later in time than the main proceedings and the adoption of the decision to refer, the fact remains that, as is apparent from that decision and as the Belgian Government acknowledged at the hearing, the disputed provisions in Articles 54 to 57 of the 1991 Law, that is to say, those laying down the principle of a general prohibition of combined offers and providing for certain exceptions to that principle, were neither repealed nor even amended by the Law of 5 June 2007.
37. In other words, both at the time of the main proceedings and at the time when the decision to refer was adopted, those pre-existing provisions were regarded by the national authorities as being capable of ensuring transposition of the Directive from the date of its entry into force, that is to say, from 12 June 2005, and, accordingly, as falling within its scope.
38. Secondly, in any event, it follows from the case-law of the Court that, during the period prescribed for transposition of a directive, the Member States to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive (Case C‑129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 45; Case C‑14/02 ATRAL  [2003] ECR I‑4431, paragraph 58; and Case C‑144/04 Mangold  [2005] ECR I‑9981, paragraph 67).
39. In that respect, the Court has had occasion to hold that all the authorities of the Member States concerned, including the national courts, have such an obligation to refrain from taking measures. It follows that, from the date upon which a directive has entered into force, the courts of the Member States must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise, after the period for transposition has expired, attainment of the objective pursued by that directive (see, in particular, Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraphs 122 and 123).
40. Since the Directive had already entered into force at the time of the facts in the main proceedings, the interpretation sought by the Rechtbank van koophandel te Antwerpen, which relates to crucial provisions of the Directive, must be regarded as being useful to that court for the purpose of enabling it to rule in the case before it in compliance with that obligation to refrain.
41. In the light of the foregoing, the reference for a preliminary ruling made by the national court in Case C‑261/07 is admissible.
Substance
Observations submitted to the Court
49. In that regard, it should be borne in mind that Article 2(d) of the Directive gives a particularly wide definition to the concept 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’.
50. As the Advocate General observed in points 69 and 70 of her Opinion, combined offers 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 the Directive and, consequently, fall within its scope.
51. That having been determined, it must first be recalled that the Directive 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.
52. Thus, the Directive fully harmonises those rules at the Community level. Accordingly, as Article 4 thereof expressly provides and contrary to the assertions of VTB and the French Government, Member States may not adopt stricter rules than those provided for in the Directive, even in order to achieve a higher level of consumer protection.
53. Next, Article 5 of the Directive provides that unfair commercial practices are to be prohibited and sets out the criteria on the basis of which practices are to be classified as being unfair.
54. 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 materially to distort the economic behaviour of the average consumer with regard to the product.
55. Furthermore, Article 5(4) of the Directive defines two precise categories of unfair commercial practices, that is to say, ‘misleading’ practices and ‘aggressive’ practices corresponding to the criteria specified in Articles 6 and 7 and Articles 8 and 9 of the Directive respectively. Pursuant to those provisions, such 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.
56. Annex I to the Directive also establishes an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) of the Directive, are regarded as unfair ‘in all circumstances’. Consequently, as recital 17 in the preamble to the Directive expressly states, these are the only commercial practices which can be deemed to be unfair without a case-by-case assessment under the provisions of Articles 5 to 9 of the Directive.
57. Finally, it should be noted that combined offers are not included in the practices listed in Annex I to the Directive.
58. It is therefore in the light of the content and the general scheme of the provisions of the Directive noted in the preceding paragraphs that the questions referred by the national court must be examined.
62. Thus, the Directive precludes the system implemented by Article 54 of the 1991 Law in so far as that article prohibits, generally and pre-emptively, combined offers without any verification of their unfairness in the light of the criteria laid down in Articles 5 to 9 of the Directive.
64. Finally, it should be added that such an interpretation cannot be called into question by the fact that the 1991 Law provides, in Articles 55 to 57 thereof, for a number of exceptions to that prohibition of combined offers.
65. Although those exceptions are liable to restrict the scope of the prohibition of combined offers, the fact remains that, because of their limited and pre-defined nature, they cannot take the place of the analysis, which must of necessity be undertaken having regard to the facts of each particular case, of the ‘unfairness’ of a commercial practice in the light of the criteria set out in Articles 5 to 9 of the Directive, where, as in the main proceedings, that practice is not listed in Annex I thereto.
66. That finding is, moreover, confirmed by the very content of certain of the derogations at issue. Thus, for example, Article 55 of the 1991 Law authorises combined offers for an overall price only on condition that they relate to products or services which form a whole or which are identical. As the Commission rightly points out in its answer to the written question put by the Court, the possibility cannot be excluded, particularly if correct information is provided to consumers, that a combined offer of different products or services which neither form a whole nor are identical may satisfy the requirements of fairness laid down in the Directive.