In its judgment of 16 April 2015, the Court of Justice ruled that the non-recurring communication of erroneous information by a professional to a consumer can be classed as a misleading commercial practice within the meaning of the Unfair Commercial Practices directive, even though this communication of information concerned only one single consumer.
A provider of cable television services communicated erroneous information to a consumer with regard to the duration of his subscription. The consumer relied on this erroneous information to determine when he had to terminate his contract. As a result, for a short period, he incurred the costs of subscribing to two different service providers.
The Court of Justice ruled, inter alia, on the question whether the communication of erroneous information by a professional to one single consumer is capable of being classed as a misleading commercial practice within the meaning of Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices (hereinafter the "Directive").
The Court of Justice recalls that the Directive seeks to ensure a high level of consumer protection and is characterised by a particularly wide scope ratione materiae. The term "commercial practice" is defined as "any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader". The sole criterion referred to in the Directive is that the trader's practice must be directly connected with the promotion, sale or supply of a product or service to consumers. Moreover, the Directive is also applicable to commercial practices following the conclusion of a contract or during its performance. Therefore, the communication of information made by the after-sales service of an undertaking relating to a subscription to cable television services by a consumer must be regarded as coming within the concept of commercial practice within the meaning of the Directive.
Further, according to the Court of Justice, the erroneous information meets the criteria of a "misleading commercial practice" within the meaning of the Directive. The consumer received erroneous information as to the duration of his contract. As he relied on the erroneous information received from the professional, the consumer was prevented from making an informed choice and, moreover, incurred additional costs.
The fact that the action of the operator took place on only one occasion and affected only one single consumer is irrelevant, according to the Court of Justice. The Directive and its definitions do not include any indication that the conduct on the part of the professional must be recurrent or must concern more than one consumer in order to come within the scope of the Directive. Moreover, such interpretation would give rise to serious disadvantages. Since the Directive does not establish any thresholds in terms of frequency or the number of consumers concerned, beyond which an action would come within its scope, this would give rise to legal uncertainty. Furthermore, this view would imply that it is for the consumer to establish that other individuals have been harmed by the same operator, even though, in practice, it is extremely difficult to provide such evidence.
According to the Court of Justice, the following elements were also irrelevant in determining whether conduct can be classed as misleading commercial practice:
- the fact that it was a mistake, and therefore unintentional conduct by the professional;
- the fact that the additional costs imposed on the consumer as a result of this conduct were insignificant; and
- the fact that the consumer could have obtained the correct information himself from several other sources.
Finally, the Court of Justice confirmed its previous ruling (judgment in CHS Tour Services, C-435/11) that, if a commercial practice meets all of the criteria for classification as a "misleading practice", it is not necessary to determine whether such a practice is also contrary to the requirement of professional diligence in order for it to be regarded as unfair and prohibited.