The matter at hand
A French consumer purchased a Sony laptop including pre-installed Windows software. Upon the first use of the computer, the consumer refused to accept the end-user licence agreement. Instead, the consumer requested Sony to reimburse him for part of the purchase price of the laptop that would correspond to the cost of the pre-installed software, that he would never use. Sony refused this, submitting that the computer and the pre-installed software form part of a single and non-separable offer. Sony offered to cancel the sale and to reimburse the entirety of the sale price. Since there was no option for the consumer to purchase the same model not equipped with pre-installed software, the consumer declined this offer and issued proceedings against Sony (for payment of EUR 450 for the pre-installed software and of € 2,500 for the damage suffered as a result of unfair commercial practices). The claims were dismissed by the District Court and the Court of Appeals in France, but the Court of Cassation decided to refer questions to the ECJ.
The referring court asked whether the sale of a computer equipped with pre-installed software without any option for the consumer to purchase the same model of computer not equipped with that software constitutes an unfair commercial practice within the meaning of Article 5(2) of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, which provides that a commercial practice is unfair if it is contrary to the requirements of professional diligence and it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer.
Secondly, the court asked whether the failure to indicate the price of the pre-installed software constitutes a misleading commercial practice within the meaning of Article 5(4)(a) and Article 7 of the Directive.
The judgment of the ECJ
Regarding the first question, the ECJ considers that it must be ascertained “whether the behaviour of the trader entails a possible violation of honest market practices or of the principle of good faith in the trader’s field of activity” (paragraph 34).
The ECJ considers that this does not appear to be the case here, considering “that the consumer was correctly informed, that the combined offer met the expectations of a significant proportion of consumers and that it was possible for the consumer to accept all the elements of that offer or to cancel the sale” (paragraph 37). As to whether the combined offer impairs the ability of consumers to make an informed transactional decision, the ECJ seems to consider that unlikely in the given circumstances as well, but leaves this for the referring court to determine (paragraph 41).
Regarding the failure to indicate the price of the pre-installed software, the ECJ considers that it is clear from the wording of the Directive that the overall price of the product offered for sale, and not the price of each individual component, is considered to be material information which the consumer needs to make an informed transactional decision (paragraph 46). Therefore, the failure to indicate the price of the pre-installed software 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”.