Proceedings were brought in Denmark against the defendant, a Danish undertaking providing television programme packages to consumers, for infringement of national provisions transposing Parliament and Council Directive 2005/29/EC (the “Unfair Commercial Practices Directive”), in connection with an advertising campaign for television subscriptions. That campaign consisted of advertisements shown on television and on the Internet, as well as banner advertisements on the Internet, on the homepage of the defendant’s website. The prices of those subscriptions consisted of various elements including a monthly charge of two different amounts, and a much higher six-monthly “card service” charge. In the advertisements, the lower monthly charge was particularly highlighted, whilst the six-monthly charge was omitted entirely or presented only in a less conspicuous manner. By clicking on the banner ad, the consumer could access the defendant’s homepage, where he could find further information about the subscription, in particular about the six-monthly “card service”. The criminal proceedings were brought before the referring Danish court on the ground that the defendant did not provide consumers with sufficiently clear information regarding the pricing. That court, which noted that the provisions of article 7(1) and (3) of Directive 2005/29 were not included in the national legislation, but were only mentioned in the statement of the reasons for the draft law which led to the adoption of the legislation, was uncertain as to whether that legislation complied with the Directive and, accordingly, referred to the Court of Justice of the European Union for a preliminary ruling a number of questions on the interpretation of articles 6(1) and 7 of Directive 2005/29.
Under article 6(1) of Directive 2005/29, a commercial practice was to be regarded as misleading if, first, it deceived or was likely to deceive the average consumer in relation to one or more of the elements listed in that provision, which included the price or the manner in which the price was calculated, and, secondly, caused or was likely to cause the consumer to make a transactional decision that he would not have otherwise made.
Article 7 of Directive 2005/29 provided: “1. A commercial practice shall be regarded as misleading if … taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs … to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. 3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted. 4. In the case of an invitation to purchase, the following information shall be regarded as material … (c) the price inclusive of taxes …”
On the reference—
Held, (1) that article 7(1) and (3) of Parliament and Council Directive 2005/29/EC meant that, for the purposes of assessing whether a commercial practice constituted a misleading omission, consideration had to be given to the context in which that practice took place, in particular the limitations of the communications medium used for the purposes of that commercial practice, the limitations of time and space imposed by that communications medium and any measures taken by the trader to make the information available to consumers by other means, even though that requirement was not expressly referred to in the wording of the national legislation in question (paras 28, 34, 35, operative part, para 1)
(2) Article 6(1) of Directive 2005/29 meant that a commercial practice which consisted of dividing the price of a product into several components and highlighting one of them, was misleading, since that practice would be likely, first, to give the average consumer the false impression that he had been offered a favourable price and, secondly, caused him to make a transactional decision that he would not have otherwise made, which was for the referring court to ascertain, taking into account all the relevant circumstances. However, the time constraints that could apply to certain communication media, such as television commercials, could not be taken into account when assessing whether a commercial practice was misleading under article 6(1) (paras 47–49, operative part, para 2).
(3) Article 7 of Directive 2005/29 meant that, where a trader had opted to state the price for a subscription so that the consumer had to pay both a monthly charge and a six-monthly charge, that practice constituted a misleading omission if the price of the monthly charge was particularly highlighted in the marketing, whilst the six-monthly charge was omitted entirely or presented only in a less conspicuous manner, if such failure caused the consumer to make a transactional decision that he would not have otherwise made. It was for the referring court to assess, taking into account the limitations of the communication medium used, the nature and characteristics of the product and the other measures that the trader had actually taken to make material information about the product available to the consumer (paras 62–64, operative part, para 3).
(4) Article 7(4) of Directive 2005/29 contained an exhaustive list of the material information that had to be included in an invitation to purchase. It was for the national court to determine whether the trader in issue had satisfied his duty to provide information, taking into account the nature and characteristics of the product but also the communication medium used for the invitation to purchase and additional information possibly provided by that trader. The fact that a trader provided, in an invitation to purchase, all the information listed in article 7(4) did not preclude that invitation from being regarded as a misleading commercial practice within the meaning of article 6(1) or article 7(2) (para 72, operative part, para 4).
M Hopp for the defendant company.
C Thorning and M Søndahl Wolff, agents, for the Danish Government.
T Henze and J Kemper, agents, for the German Government.
F Urbani Neri (instructed by G Palmieri, agent) for the Italian Government.
G Eberhard, agent, for the Austrian Government.
H Leppo, agent, for the Finnish Government.
T Skjeie and I Jansen, agents, for the Norwegian Government.
M Clausen and D Roussanov, agents, for the European Commission.