The controversial issue in this case was whether a contract could be found between the parties, considering that the consumer did not explicitly agree to the water supply from Stichting Waternet. If not, this could be an example of inertia selling, where the service was provided to the consumer unsolicited and the consumer could then be justified in not paying for it, even if they used the service.
The CJEU leaves the matter of contract formation to the national laws to address, as neither the UCPD nor the Distance Selling Directive (then binding Directive 97/7) regulated this issue (paras 40-42, 44-45). Whether a contract could have been formed without the express consent of the consumer is then to be determined under Dutch law.
However, the CJEU does look into the matter whether this situation could qualify as an unsolicited supply of services to consumers, which pursuant to the UCPD would be prohibited as inertia selling. The CJEU makes a lot of disclaimers as to whether the assessment of the Dutch water supply company's commercial practice could be considered an example of inertia selling. Dutch courts should consider whether this matter is not fully regulated by national law (para 48), as well as whether the practice follows from the application of provisions of Dutch law (in case: Drinkwaterwet) that aim to protect economic interests of consumers (para 52). This would determine the applicability of the UCPD to begin with.
Inertia selling is an example of an aggressive commercial practice that is prohibited in all circumstances. Protection of consumers against aggressive commercial practices aims at ensuring average consumers' freedom of choice in contract formation (paras 55, 57). The CJEU does not think that in the given case the consumers' freedom of choice has been infringed and, therefore, does not find it likely that this practice could qualify as an example of inertia selling. This follows from the fact that consumers generally do not have a choice of water supply provider in Amsterdam, that the supplier is obliged to provide prices to consumers in a cost-covering, transparent and non-discriminatory manner, proportionately to water consumption, and that average consumers know that they are connected to the public water supply network and that water is supplied against payment (paras 59-60). It was also obvious that the water supply company tried to personally inform consumers about the contract's terms and was obliged to provide the water supply service to them, which could not be disconnected due to non-payments before further actions were taken (para 58).
Overall, this case distinguishes then from the ruling in the Wind Tre case (C-54/17 and C-55/17, see our comment here). Considering the reasoning of the Dutch Supreme Court it is likely that the CJEU's answer to the posed questions will lead the Dutch Supreme Court to decide that the practice of the water supply company did not fall within the scope of the UCPD. This was already suggested as the practice is not perceived as harming economic interests of consumers nor limiting their freedom of choice (for reasons mentioned above) and further there is no competition on the water supply market in the Netherlands.
