Brussels, 12/05/2011 (Agence Europe) - Through its ruling in case C-122/10, delivered on Thursday 12 May, the Court of Justice of the EU clarified the concept of “invitation to purchase” in commercial communication and some of its elements which allow consumers to make a decision to purchase.
The case was referred to the Court by the Swedish commercial court, which was hearing a dispute between a Swedish travel agency and the ombudsman representing consumers. The ombudsman alleged that the company had deceived consumers by omission by stating in its advertising not a set price, but a price, accompanied by the indication “from”, thus, the starting price. The Swedish court was seeking interpretation of Directive 2005/29/EC on unfair business-to-consumer practices to enable it to come to a decision.
In its ruling, the Court states straight away that, in the directive, the “invitation to purchase” should be defined as any commercial communication indicating the characteristics of a product and its price in a way appropriate to the medium used for the commercial communication, thereby allowing a consumer to make a purchase. On this basis, it says, the invitation to purchase exists as soon as the information on the product being marketed and the price of the said product is “sufficient for the consumer to be able to make a transactional decision, without it being necessary for the commercial communication also to offer an actual opportunity to purchase the product or for it to appear in proximity to and at the same time as such an opportunity”.
As to the elements that make up the commercial communication, the Court states that: - the communication must specify the price of the product, though the directive does not necessarily insist that the final price must be shown; thus, indicating the starting price, that is to say, the lowest price, may be enough, even though there are different variations of the product at prices which are not shown; - a verbal or visual representation of the product may, in principle, be enough to satisfy the demands on indicating the characteristics of the product. Similarly, the seller may provide only some of the main characteristics of the product, directing the consumer to an internet site for fuller information. However, all the information on the characteristics of the products may vary considerably depending on the nature of the product itself.
That is why, on all these points, it will be for the national court to decide case-by-case and depending on the nature and characteristics of the product, or the medium used for the commercial communication (written, oral or pictorial), whether merely the starting price, a representation of the product or the general information provided give the consumer sufficient information to be able make an informed decision on whether or not to purchase. (F.G./transl.rt)