Brussels, 19/09/2013 (Agence Europe) - A commercial practice that misleads consumers is unfair and, therefore, prohibited, and there is no need to show that it is contrary to the requirements of professional diligence.
That was the response given by the EU Court of Justice to the Austrian Supreme Court on Thursday 19 September (case C-435/11). The Austrian court had called for an interpretation of Directive 2005/29/EC on this point (prohibition of unfair commercial practices by companies towards consumers).
In this case, the travel agent, Team4Travel, had published a brochure indicating that different hotels for the 2012 ski season in Austria could be booked for certain dates exclusively through its services (by way of a contract of exclusivity signed with those hotels). The hotels concerned, however, did not honour the exclusivity and granted certain quotas for the same dates to CHS Tour Services. The latter, considering that the declaration of exclusivity contained in the Team4Travel brochure violated the ban on unfair commercial practices, called on the Austrian courts to ban Team4Travel from using the said declaration. The two lower courts rejected that application, on the grounds that, according to them, there was no unfair practice. In the light of the guarantees of exclusivity that it had been given by the hotels, Team4Travel had complied with the requirements of professional diligence. CHS then brought an appeal on a point of law before the Austrian Supreme Court.
The Supreme Court observed that the information relating to exclusivity, contained in Team4Travel's brochures, was objectively incorrect and, since it satisfied all of the other criteria expressly laid down in the directive (see above), that information constituted, from the viewpoint of the average consumer, a misleading commercial practice. Nonetheless, the national court asked whether, before categorising a practice as misleading, and therefore as unfair and prohibited, it was necessary to determine, in addition to those criteria being satisfied, whether that practice was contrary to the requirements of professional diligence, which would not be the case in this instance, since Team4Travel had done everything to secure the exclusivity it claimed in its brochures.
In its judgment, the Court states that, if a commercial practice satisfies all the criteria expressly set out in the provision of the directive (2005/29/EC) which specifically governs misleading practices in relation to the consumer, it is not necessary to determine whether such a practice is also contrary to the requirements of the professional diligence as referred to in that directive in order for it legitimately to be regarded as unfair and, therefore, prohibited. Indeed, the misleading nature of a commercial practice depends solely on the fact that it is untruthful in so much as it contains false information or that, generally, it is likely to deceive the average consumer in relation to, inter alia, the nature or main characteristics of a product or a service and that, therefore, it is likely to cause that consumer to take a transactional decision that he would not have taken if there had been no such practice. (FG/transl.jl)