The matter at hand

The undertaking of which Orange Polska is the successor in law concluded contracts with consumers for the supply of telecommunications services by means of distance selling through its online shop or by telephone (telesales). The process for concluding the contracts was such that consumers, after ordering the services through the webshop or by telephone, received the contract from a courier and were asked to sign it in the presence of the courier. Consumers were informed that if they did not sign the contract in the presence of the courier, they had to visit a physical retail outlet or reorder online or by telephone.

The Chairman of the Polish Office of Competition and Consumer Protection considered that this practice constituted an unfair commercial practice, but that decision was annulled by the Okręgowy w Warszawie (Regional Court, Warsaw). After the appeal against that judgment was dismissed, the Chairman appealed to the Sąd Najwyższy (Supreme Court, Poland), which referred to matter to the ECJ for a preliminary ruling. The questions related to the interpretation of Articles 8 and 9 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, dealing with ‘aggressive commercial practices’. The referring court asked, in particular, whether a practice requiring the consumer to sign a contract in the presence of a courier constitutes an aggressive commercial practice in all circumstances, and, if not, in which circumstances such practice should be considered aggressive.

The judgment of the ECJ

The ECJ points out that Annex I 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 constitutes a full and exhaustive list of the practices that are to be deemed unfair in all circumstances without having to be assessed on a case-by-case basis. Since the practice at issue is not listed therein, the ECJ rules that such cannot be classified as an aggressive commercial practice in all circumstances. This means that the referring court must carry out a “factual and case-specific assessment of the features” of the practice in question, in the light of the criteria set out in Articles 8 and 9 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 (paragraph 31).

Under these provisions, a commercial practice is to be regarded as aggressive if it uses ‘harassment’, ‘coercion’ or ‘undue influence’. Since the questions of the referring court concern ‘undue influence’ only, the ECJ limits its considerations to the interpretation of that notion. According to Article 2(j) of the directive, the concept of undue influence covers ‘the exploitation of a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision’. The ECJ clarifies that “undue influence is not necessarily impermissible influence but influence which, without prejudice to its lawfulness, actively entails, through the application of a certain degree of pressure, the forced conditioning of the consumer’s will” (paragraph 33). Citing its judgment in Tre and Vodafone Italia (C‑54/17 and C‑55/17), the ECJ continues that it follows that the consumer must have been able to make a free choice, which supposes, in particular, that the information provided by the trader to the consumer is clear and adequate.

Applying these principles, the ECJ takes into consideration that in the present case, the consumers had access to the standard-form contracts via the trader’s website or, in the case of telesales, could obtain that information during the telephone call with the trader’s operator. The ECJ rules that, therefore, “the consumer has had the opportunity, prior to the courier’s visit, to take cognisance of the content of the standard-form contracts available on the trader’s website” and “has been put in a position freely to make his contractual choice” (paragraph 40). The ECJ holds that in these circumstances, a practice requiring consumers to take the final transactional decision in the presence of a courier without having been sent individually all the standard-form contracts beforehand, for example by e-mail or to his home address, cannot be considered to be an aggressive practice.

The ECJ adds that it is for the referring court to verify whether consumers were indeed able to make an informed decision and had the opportunity to access the content of the various standard-form contracts prior to the courier’s visit, either by means of the information available on the trader’s website or by any other means. In that regard, the ECJ notes that “the quality of the information obtained by a given consumer during a telephone conversation may not be comparable to the quality of the information available online. Accordingly, it must be ascertained whether the information which a consumer making use of that sales channel was able to access is sufficient to guarantee freedom of choice on his part” (paragraph 42). Moreover, the ECJ notes that the mere fact that the consumer has not actually had access to that information is still not, per se, sufficient to classify the practice as an aggressive practice, as “it is still necessary to identify conduct by the trader that may be regarded as undue influence” (paragraph 43).

In summary, a practice requiring consumers to conclude and sign a contract in the presence of a courier is not an aggressive practice per se in circumstances where consumers had the opportunity to access the content of the contract beforehand. The ECJ, however, emphasizes that “certain additional practices which might be adopted by the trader or its courier” may lead to the commercial practice being regarded as aggressive after all, namely if the aim thereof is to limit the consumer’s freedom of choice and the effect thereof is “to put pressure on the consumer such that his freedom of choice is significantly impaired” (paragraph 46). The ECJ holds that this is the case where the courier insists on the need to sign the contract, in so far as such an attitude “is liable to make that consumer feel uncomfortable and thus to confuse his thinking in relation to the transactional decision to be taken” (paragraph 47). By way of example, the ECJ refers to a situation in which consumers are informed that any delay in signing the contract would mean that the subsequent conclusion thereof would be possible only under less favourable conditions, or that the consumer would risk having to pay contractual penalties.

The ECJ concludes “that the application by a trader of a model for concluding or amending contracts for the supply of telecommunications services, such as that at issue in the main proceedings, under which the consumer must take the final transactional decision in the presence of a courier who delivers the standard-form contract, without being able freely to take cognisance of the content of that contract while the courier is present: (i) does not constitute an aggressive commercial practice in all circumstances, (ii) does not constitute an aggressive commercial practice through the exertion of undue influence solely on the ground that not all the standard-form contracts were sent to the consumer individually beforehand, and (iii) constitutes an aggressive commercial practice through the exertion of undue influence where the trader or its courier adopt unfair conduct, the effect of which is to put pressure on the consumer such that his freedom of choice is significantly impaired, such as conduct that makes that consumer feel uncomfortable or confuses his thinking concerning the transactional decision to be taken”.