European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Within misleading practices, Directive No 2005/29 makes a distinction between misleading actions (Article 6) and misleading omissions (Article 7).
1) Misleading actions
Pursuant to Article 6(1), “a commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the avera …

Misleading commercial practices

Within misleading practices, Directive No 2005/29 makes a distinction between misleading actions (Article 6) and misleading omissions (Article 7).

Pursuant to Article 6(1), “a commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct” and “causes or is likely to cause him to take a transactional decision that he would not have taken otherwise”. Any decision directly related to the decision whether or not to purchase a product is covered by the concept of “transactional decision” . When a practice satisfies those criteria, it constitutes an unfair commercial practice and it is not necessary to determine whether the condition of that practice being contrary to the requirements of professional diligence laid down in Article 5(2)(a) is also met .

The misleading action, which is not limited to false allegations, has a quite subjective character which means that the case law rendered in application of Directive No 84/450 is very important. Thus, a seller stating that the goods for sale come from an insolvent estate is misleading where the information, even if true, that the goods belong to the insolvent estate induces the consumer to think that these goods are sold at a very low price .

A lie or misleading mistake which constitutes a misleading action may relate to various aspects such as the existence or nature of the product, its main characteristics , the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, as well as any statement or symbol which gives the impression that the trader of the product is sponsored or has a direct or indirect support, its price or the manner in which the price is calculated, or the existence of a specific price advantage, the need for a service, part, replacement or repair, the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions, the consumer's rights, including the right to replacement or reimbursement under Directive No 1999/44 of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, or the risks it may face. A misleading commercial practice is constituted or where traders give the false impression that the consumer has already won a prize, while the taking of any action in relation to claiming that prize, be it requesting information concerning the nature of that prize or taking possession of it, is subject to an obligation on the consumer to pay money or to incur any cost whatsoever, regardless of whether the cost is insignificant compared with the value of the prize or that it does not procure the trader any benefit . Where the price of a product is divided into several components, while the other, which nevertheless constitutes an inevitable and foreseeable element of the price, is completely omitted or is presented less prominently, that presentation is also misleading .

Pursuant to Article 6(2), a commercial practice is also regarded as misleading if, in its factual context, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, provided that it involves the implementation of techniques which create confusion with another product, trade mark, trade name or other distinguishing mark of a competitor or the non-compliance by the advertiser with commitments contained in a code of conduct by which it is bound. However, although non-compliance by a trader with a code of conduct may constitute an unfair commercial practice, the directive does not preclude national legislation which does not confer a legally binding nature on a code of conduct, and hence does not require the Member States to provide for there to be direct consequences for traders solely on the ground that they have not complied with a code of conduct after subscribing to it . The Court of Justice has clarified that time constraints that may apply to certain communication media, such as television commercials, cannot be taken into account . 

Where it causes or is likely to cause a consumer to take a transactional decision that he or she would not have taken otherwise, the omission of “material information that the average consumer needs, according to the context, to take an informed transactional decision” (Article 7(1)) is misleading. The same goes when a trader hires or provides such material information in an unclear, unintelligible, ambiguous or untimely manner , or fails to identify its commercial intent (Article 7(2)). Thus, in the context of a combined offer consisting of the sale of a computer equipped with pre-installed software, the failure to indicate the price of each of those items of pre-installed software does not constitute a misleading commercial practice insofar as the price the price of each of those items of software is is not such as to prevent the consumer from taking an informed transactional decision or likely to cause the average consumer to make a transactional decision that he would not have taken otherwise . Likewise, the act of not providing consumers with information on the testing conditions that resulted in the energy classification indicated on the energy label does not constitute a misleading omission within the meaning of the  directive . However, information on the basis of which the comparison was made between the prices charged in shops having larger sizes or formats in the advertiser's retail chain and those displayed in shops having smaller sizes or formats in competitors' retail chains is material information within the meaning of Article 7 . Technical limitations imposed on the trader by the medium used to communicate must, in all events, be taken into account in deciding whether information has been omitted, as he may make additional information available to consumers by other means (Article 7(3)) .

The directive distinguishes between commercial communications, such as advertising and marketing, and invitations to purchase - “a commercial communication […] indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase” (Article 2(i)). Information in relation to commercial communication which appear in the European directives whose non-exhaustive list is contained in Annex II are regarded as material (Article 7(5)) 

Pursuant to Article 7(4), an invitation to purchase must contain the following material information: main characteristics of the product, geographical address and identity of the trader, price inclusive of taxes or manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges, arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence and, for products and transactions involving a right of withdrawal or cancellation, existence of such a right. According to the Court of Justice, a reference only to an entry-level price in an invitation to purchase cannot be regarded, in itself, as a misleading omission . A trader may merely mention certain of a product's main characteristics in an invitation to purchase where it refers in addition to its website insofar as it fulfills its obligations as to essential information . Therefore, although the information on the geographical address and identity of the trader, referred to in Article 7(4)(b) of Directive No 2005/29, must in principle be included in the invitation to purchase, that need not necessarily be the case where the means of communication used for the purposes of the commercial practice imposes limitations of space, provided however that the consumers who may purchase the products advertised via the website, mentioned in the advertisement, may easily obtain that information on or via that website . 

Case C-281/12 Trento Sviluppo (SRL), Judgment of 19 December 2013, LawLex201300001863JBJ.

Case C-435/11 CHS Tour Services GmbH, Judgment of 19 September 2013, LawLex201300001334JBJ .

Case C-632/16 Dyson, Judgment of 25 July 2017, LawLex201800001257JBJ.

Case C-562/15 Carrefour Hypermarchés (SAS), Judgment of 8 February 2017, LawLex201700000286JBJ.

Case C-611/14 Canal Digital Danmark, cited above: The national court must give consideration to the context in which that practice takes 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 is not expressly referred to in the wording of the national legislation in question.

Case C-122/10 Konsumentombudsmannen [2011] ECR I-3903, LawLex201100001092JBJ.

Case C-122/10 Konsumentombudsmannen, cited above.

Case C-146/16 Verband Sozialer Wettbewerb eV, Judgment of 30 March 2017, LawLex201700000611JBJ, which specifies that it is for the referring court to examine, on a case-by-case basis, whether the limitations of space in the advertisement warrant information on the supplier being provided only upon access to the online sales platform and, whether, so far as the online sales platform is concerned, the information required by Article 7(4)(b) of Directive 2005/29 is communicated simply and quickly.

Case C-71/02 Commission v Portugal [2003] ECR I-6597, LawLex200900001159JBJ.

Under the directive, the main characteristics of the product refer to its availability, benefits, risks, execution, composition, accessories, aftersale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product.

Case C-428/11 Purely Creative Ltd, Judgment of 18 October 2012 LawLex201200002226JBJ.

Case C-611/14 Canal Digital Danmark, Judgment of 26 October 2016, LawLex201600001753JBJ.

Case C-109/17 Bankia SA v Mari Merino, Judgment of 19 September 2018, LawLex201800001351JBJ.

Case C-611/14 Canal Digital Danmark, cited above.

See, however, Case C-373/90 X [1992] ECR I-131, LawLex200900000577JBJ: an advertiser is not guilty of misleading advertising by offering cars as less expensive than those sold by official dealers, where it does not mention that the price difference is justified because they are equipped with fever accessories, insofar as such factors would not have deterred a significant number of consumers from making a purchase, had they known it.

Case C-310/15 Deroo-Blanquart, Judgment of 7 September 2016, LawLex201600001382JBJ.

European Business Law

216. Misleading commercial practices

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

216. Misleading commercial practices

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise