Dividing subscription fees into monthly and six-monthly components must be regarded as misleading

ADVERTISING LAW

Consideration should be given to the context in which the practice takes place when assessing whether a commercial practice must be considered as a misleading omission. In particular limitations of the communication mediums used should be given consideration.

" In the light of the above considerations, the answer to the first question is that Article 7(1) and (3) of Directive 2005/29 must be interpreted as meaning that, for the purposes of assessing whether a commercial practice must be considered as a misleading omission, consideration should be given to the context in which that practice takes place, in particular the limitations of the communications medium used for the purposes of that commercial practice, the limitations of time and space imposed by that communications medium and any measures taken by the trader to make the information available to consumers by other means, even though that requirement is not expressly referred to in the wording of the national legislation in question. "

Dividing the price of a product into several components and highlighting one of them must be regarded as misleading. That practice would be likely to give the average consumer the false impression the has been offered a favourable prices and cause him to make a transactional decision he would not have made otherwise.

" In the light of those considerations, the answer to the second question is that Article 6(1) of Directive 2005/29 must be interpreted as meaning that a commercial practice which consists of dividing the price of a product into several components and highlighting one of them, must be regarded as misleading, since that practice would be likely, first, to give the average consumer the false impression that he has been offered a favourable price and, secondly, cause him to make a transactional decision that he would not have made otherwise, which it is for the referring court to ascertain, taking into account all the relevant circumstances of the main proceedings. However, the time constraints that may apply to certain communication media, such as television commercials, cannot be taken into account when assessing whether a commercial practice is misleading under Article 6(1) of that directive. " 

Highlighting the monthly charges and omitting entirely or presenting in a less conspicuous manner of six-monthly charges in marketing communications is a misleading omission when it causes a transactional decision of a consumer he would not have taken otherwise. It is for the referring court to assess, taking into account the limitations of the communication medium used, the nature and characteristics of the products and the other measures the trader has actually taken to make material information about the product available to the consumer.

" In the light of those considerations, the answer to the third question is that Article 7 of Directive 2005/29 must be interpreted as meaning that, where a trader has opted to state the price for a subscription so that the consumer must pay both a monthly charge and a sixmonthly charge, that practice must be regarded as a misleading omission if the price of the monthly charge is particularly highlighted in the marketing, whilst the six-monthly charge is omitted entirely or presented only in a less conspicuous manner, if such failure causes the consumer to take a transactional decision that he would not have taken otherwise. It is for the referring court to assess, taking into account the limitations of the communication medium used, the nature and characteristics of the product and the other measures that the trader has actually taken to make material information about the product available to the consumer. " 

Article 7(4) of Directive 2005/29 contains an exhaustive list of the material information that must be included in an invitation to purchase. It is for the national court to determine whether the trader at issue has satisfied his duty to provide information

" In the light of those considerations, the answer to the sixth and seventh questions is that Article 7(4) of Directive 2005/29 must be interpreted as meaning that it contains an exhaustive list of the material information that must be included in an invitation to purchase. It is for the national court to determine whether the trader at issue has satisfied his duty to provide information, taking into account the nature and characteristics of the product but also the communication medium used for the invitation to purchase and additional information possibly provided by that trader. The fact that a trader provides, in an invitation to purchase, all the information listed in Article 7(4) of that directive does not preclude that invitation from being regarded as a misleading commercial practice within the meaning of Article 6(1) or Article 7(2) of that directive. " 

IPPT20161026, CJEU, Canal Digital

C-611/14 - ECLI:EU:C:2016:800