Thursday, 16 April 2015

Yes, yes, yes! Information to a single consumer is a commercial practice - CJEU in Case C-388/13

Contrary to the controversial opinion of AG Wahl the CJEU stated today in the judgment in Case C-388/13 UPC Magyarország that an information by a professional to only one single consumer may be classified a commercial practice within the meaning of Unfair Commercial Practices Directive.

According to the CJEU, the UCPD is characterised by a particularly wide scope ratione materiae. Article 2(d) of the UCPD defines commercial practice broadly as ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader’. Therefore, this provision only requires that the trader’s practice must be directly connected with the promotion, sale or supply of a product or service to consumers. The UCPD is applicable to commercial practices in relations between a professional and a consumer and following the conclusion of a contract or during the performance of that contract (paras 34–36). However, the CJEU emphasized that it is immaterial that the action of the professional takes place on only one occasion and affects only one single consumer. The UCPD does not contain any indication that the act or omission on the part of the professional must be recurrent or must concern more than one consumer. Moreover, the provisions of the UCPD cannot be interpreted as imposing conditions of that kind where they do not even set out such conditions explicitly. The UCPD does not establish a threshold beyond which an act or omission must come within the scope of that directive and under the UCPD the consumer has no obligation to establish that other individuals have been harmed by that same trader (paras 41–46).

In the light of the questionable opinion of AG Wahl indicating that the UCPD only protects the collective interests of consumers (paras 31–34) other conclusions of the CJEU in the judgment in Case 388/13 UPC Magyarország seem to be of minor importance. Individual interests of consumers are also covered by the UCPD. Long live the CJEU!

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