Requiring a consumer to decide to conclude a telecommunications services contract in the presence of a courier who gives him the model contract and without being able to freely read its content may constitute an aggressive commercial practice, the EU Court of Justice ruled on Wednesday 12 June (case C-628/17).
At the end of 2010, the Polish Office of Competition and Consumer Protection considered that Orange Polska's practices limit consumers' autonomy by requiring them to decide whether to sign a contract in the presence of a courier and without being able to freely read the content of the contract models given to them.
In a referral by the Polish Supreme Court, the EU Court is asked to rule on whether Orange Polska's commercial practices constitute an aggressive commercial practice within the meaning of the Directive (2005/29/EC) on unfair business-to-consumer commercial practices: - always, because, during the supplier's visit, the consumer cannot freely examine the content of the contract models provided to him, or; - only when the consumer has not received, in advance and individually (by e-mail or post) all the contract models, even if he had the opportunity, before the courier's visit, to take cognisance of the content on the trader's website, or; - only where additional findings indicate that unfair measures to limit the consumer's choice in his decision have been adopted by that trader or at his request.
In today's judgment, the Court recalls that, in order to constitute an aggressive commercial practice, it must be demonstrated that there is undue influence on the consumer. It considers it decisive that the consumer had the opportunity, before the courier's visit, to take cognisance of the content of the standard-form (contracts) available on the trader's website. The consumer must be able to make a free contractual choice.
The national court must also verify that the consumer has indeed been able to make an informed choice by ensuring that he has had access, by any means, to the content of the various contract forms before the courier's visit.
The Court therefore finds that Orange Polska's practices: - do not constitute an aggressive commercial practice in all circumstances; - do not constitute an aggressive commercial practice by exercising an unjustified influence, solely because all models of contract are not sent to the consumer in advance and individually, where the consumer has had the opportunity to become aware of their content in advance; - constitute an aggressive commercial practice where the trader or his courier knowingly puts pressure on the consumer in such a way that his freedom of choice is significantly impaired.
See the judgment: http://bit.ly/2F7qeMp (Original version in French by Mathieu Bion)