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Illustration of the notion of disloyal commercial practice by companies against consumers

Published on : 08/06/2015 08 June Jun 06 2015
2015
2015 / Juin

Consumer Law – European Law
Source: CJUE, April 16th 2015, aff. n° C‑388/13


The directive 200/29/CE of the European Parliament and the Council dated May 11th 2005, related to disloyal commercial practices of companies against consumers within the internal market, and modifying the directive 84/450/CEE of the Council and the directives 97/7/CE, 98/27/CE and 2002/65/CE of the European Parliament and the Council and the Regulation (CE) n°2006-2004 of the European Parliament and the Council (« directive concerning disloyal commercial practices »), defines the commercial practices forbidden in the European Union.
Under the terms of the article 5 of the directive, are disloyal commercial practices those which:
- do not respect the requirements of the professional diligence; and
- may affect in a substantial way the economic behaviour of the average consumer.
The directive defines two specific categories of disloyal commercial practices: misleading practices (by action or omission) and the other practices.
In the law case, submitted to the Court, a Hungarian consumer who wished to terminate his cable television contract in order to change of supplier, had asked his operator the ending date of his contract.
The operator provided an incorrect date, bringing therefore the subscriber to pay them additional fees, as the contract was cancelled one month too late.
In addition, the consumer had subscribed for the same period with a competing supplier.
Consequently the consumer had to pay fees to both suppliers for the same period.
The subscriber has then filed a complaint to the Inspection of the protection of consumers of the government decentralized services of Budapest, which sentenced the society concerned to pay a fine. The judges of first instance have confirmed the fine. However, the Court of Budapest has set aside the decision of the said national authority dated October 10th 2011 and has cancelled the fine imposed to this society.
This court has mentioned:
- the absence of intention to mislead the consumer from the professional concerned
- the alleged facts were not part of a continuous behaviour, but an isolated administrative mistake, which only concerned one client, hence could not be qualified as « practice ».
- besides, the consumer concerned could have got the exact information from several other sources.
On the contrary, the Court considered that it was indeed a misleading commercial practice, in the sense where the subscriber was communicated false information that was likely to mislead the average consumer.
The Court did not miss to remind that the scope of application of the directive is particularly extended. The notion of commercial practice is large as it includes «any commercial action, omission, behaviour, approach or communication, including advertising and marketing, from a professional».
The circumstance that the facts happened only once and for only one consumer has therefore no effect on the application of the directive.
The Court concludes that «the communication of an information, like in the main proceedings of this law case, by a company as part of the customer service of a subscription to a service of cable television subscribed by a private individual must be considered as part of the notion of «commercial practice», in the sense of the directive on disloyal commercial practices».
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