The matter at hand

This preliminary ruling concerns the interpretation 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 commercial practices shall be unfair if they are misleading within the meaning of Article 6 (misleading actions) or Article 7 (misleading omissions).

Canal Digital provides television solutions, including television programme packages, to consumers. Proceedings against this company were brought before the Danish court for infringement of the Danish commercial practices act in connection with an advertising campaign for TV subscriptions. The campaign consisted of two advertisements shown on television and on the internet as well as three banner ads on the internet. The prices of the TV subscriptions consisted of a monthly charge of about EUR 13.30/EUR 20 and a six-monthly ‘card service’ charge of about EUR 52.30. The proceedings were brought against Canal Digital on the ground that Canal Digital did not provide consumers with sufficiently clear information regarding the fact that, in addition to the monthly price, there was also a six-monthly charge for a ‘card service’.

The referring court inter alia asked whether - for the purposes of assessing whether a commercial practice must be considered as a misleading omission - consideration should be given to the context in which that practice takes place, in particular the limitations of time and space imposed by the communications medium used, as provided for in Article 7 of the Directive, even though such a requirement is not expressly referred to in the national legislation.

Also, the referring court asked whether — in situations where a trader has stated the price for a subscription so that the consumer must pay both a monthly charge and a six-monthly charge — that practice will be considered a misleading omission (Article 7) and/or a misleading action (Article 6) if the monthly charge is particularly highlighted in the marketing, whilst the six-month charge is omitted entirely or presented only in a less conspicuous manner.

The judgment of the ECJ

The ECJ first of all rules that the national court must, when applying the provisions of national law specifically intended to implement the Directive, interpret those provisions so far as possible in such a way that they are applied in conformity with the objectives of the Directive (paragraph 34). Therefore, for the purposes of assessing whether a commercial practice must be considered a misleading omission within the meaning of Article 7 of the Directive, “consideration should be given 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” (paragraph 35).

However, unlike Article 7 (which deals with misleading omission), Article 6 (which deals with misleading actions) contains no reference to limitations of space or time related to the communication medium used. “Accordingly, it must be held that the time constraints that may apply to certain communication media, such as television commercials, cannot be taken into account when assessing whether a commercial practice is misleading under Article 6(1)” (paragraph 42).

The referring court must therefore assess, without taking account of time constraints that may apply to a certain communication medium, whether the commercial communication “is likely to lead to a mistaken perception of the overall offer” (paragraph 43) and is “likely to cause an average consumer to take a transactional decision that he would not have taken otherwise” (paragraph 45).

The ECJ considers that this is likely to be the case where the price of a product -  which is “in principle a determining factor in the mind of the average consumer” (paragraph 46) - is divided into several components, one being particularly emphasised in the marketing, while the other is completely omitted or is presented less prominently. According to the ECJ, this applies especially if “the omitted or less visible component represents a significant element of the total price” (paragraph 47).

In the light of those considerations, the ECJ concludes that Article 6(1) of the Directive “must be interpreted as meaning that a commercial practice which consists of dividing the price of a product into several components and highlighting one of them, must be regarded as misleading, since that practice would be likely, first, to give the average consumer the false impression that he has been offered a favourable price and, secondly, cause him to make a transactional decision that he would not have made otherwise, which it is for the referring court to ascertain, taking into account all the relevant circumstances of the main proceedings. However, the time constraints that may apply to certain communication media, such as television commercials, cannot be taken into account when assessing whether a commercial practice is misleading under Article 6(1) of that directive.”

As to the assessment of whether there is a misleading omission, which does require time constraints applying to certain communication media to be taken into account, the ECJ emphasizes that the Directive aims to ensure a high level of consumer protection. Consequently, “the limitations of time and space imposed by the communication medium used must be weighed against the nature and characteristics of the product in question, in order to determine whether the trader concerned in fact found it impossible to include the information at issue or to provide it in a clear, intelligible and unambiguous manner in the initial communication” (paragraph 62). Only if this is, in fact, the case, the traders is allowed to mention only some of the information in the commercial communication and refer to its website for the rest, “provided that that website contains the material information relating to the main characteristics of that product, the price and other conditions, as required under Article 7 of Directive 2005/29” (paragraph 63).

Finally, the ECJ goes into the questions asked by the referring court regarding the material information that must be included in an invitation to purchase. To these questions, the ECJ answers that Article 7(4) 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 contains an exhaustive list of the material information that must be included in an invitation to purchase. However, “the fact that a trader provides, in an invitation to purchase, all the information listed in Article 7(4) of that directive does not preclude that invitation from being regarded as a misleading commercial practice within the meaning of Article 6(1) or Article 7(2) of that directive” (paragraph 72).