Konsumentombudsmannen v Ving Sverige AB.
Date: 2011-05-12
22. The meaning of consumer is of the utmost importance for the purposes of interpreting the provisions of Directive 2005/29. 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.
23. The Court has already held that, as regards the misleading nature of advertising, the national courts must take into account the perception of an average consumer who is reasonably well informed and reasonably observant and circumspect (see, to that effect, Case C-356/04 Lidl Belgium  [2006] ECR I-8501, paragraph 78, and Case C-159/09 Lidl [2010] ECR I-0000, paragraph 47).
24. Furthermore, it must be pointed out that only a commercial practice which is categorised beforehand as an invitation to purchase is covered by Article 7(4) of Directive 2005/29, whereas all commercial practices, including invitations to purchase, are subject to the requirements of Article 7(1), (2), (3) and (5) of that directive. An invitation to purchase, which is defined in Article 2(i) of that directive, must contain a number of key items of information, which are listed in Article 7(4) of the directive and which the consumer needs in order to take an informed transactional decision. In the absence of that information, which Article 7(4) describes as material, an invitation to purchase is deemed to be misleading and is therefore unfair, as is apparent from the provisions of Articles 5(4) and 7 of Directive 2005/29.
32. It follows that, for a commercial communication to be capable of being categorised as an invitation to purchase, it is not necessary for it to include an actual opportunity to purchase or for it to appear in proximity to and at the same time as such an opportunity.
45. In so far as Article 2(i) of Directive 2005/29 requires that the characteristics of the product must be indicated in a way appropriate to the means used, the commercial medium of communication used must be taken into consideration for that purpose. The same degree of detail cannot be required in the description of a product irrespective of the form – radio, television, electronic or paper – which the commercial communication takes.
51. It should be recalled that the commercial practices covered by Article 7(4) of Directive 2005/29 require a case-by-case assessment, whereas the commercial practices referred to in Annex I to that directive are regarded as unfair in all circumstances (see, to that effect, Joined Cases C-261/07 and C-299/07 VTB-VAB  [2009] ECR I-2949, paragraph 56, and Case C-304/08 Plus Warenhandelsgesellschaft  [2010] ECR I‑0000, paragraph 45).
52. Article 7(4)(a) of Directive 2005/29 refers to the main characteristics of the product without however defining that notion or providing an exhaustive list. It is however stated that account must be taken, first, of the medium of communication used and, secondly, of the product.
53. That provision must be read in conjunction with Article 7(1) of that directive, according to which the commercial practice must be assessed having regard to its factual context and the limitations of the medium of communication used.
54. It must also be pointed out that Article 7(3) of that directive provides expressly that account is to be taken, in deciding whether information has been omitted, of the limitations of space and time of the medium of communication used and of the measures taken by the trader to make that information available to consumers by other means.
55. It follows that the extent of the information relating to the main characteristics of a product which has to be communicated, by a trader, in an invitation to purchase, must be assessed on the basis of the context of that invitation, the nature and characteristics of the product and the medium of communication used.
58. It is for the national court to assess, on a case-by-case basis, taking into consideration the context of the invitation to purchase, the medium used to communicate and the nature and characteristics of the product, whether a reference only to certain main characteristics of the product enables the consumer to take an informed transactional decision.
66. It is important to consider that Article 7(3) of Directive 2005/29 states that, where the medium used to communicate the commercial practice imposes limitations of space or time, those limitations and any measures taken by the trader to make the information available to consumers by other means are to be taken into account in deciding whether information has been omitted.
67. The guidance provided by that provision relating to the factors to be taken into account in order to ascertain whether the commercial practice must be categorised as a misleading omission apply to the invitations to purchase referred to in Article 7(4) of that directive.
68. The extent of the information relating to the price will be 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.