Friday, 24 October 2014

Information to a single consumer can not be regarded as a commercial practice - AG Wahl’s opinion in case C-388/13 UPC Magyarország

Yesterday, AG Wahl delivered an opinion in case C-388/13 UPC Magyarország concerning the Unfair Commercial Practices Directive. 

The Hungarian Court referred two questions to the CJEU on the basis of a claim filed by Mr S alleging that he had been provided with erroneous information by UPC Magyarország – a provider of cable television services.

The first question raised no new issues and the answer was easily to foreseen. The CJEU has already assessed in the judgment CHS Tour Services, that the UCPD must be interpreted as meaning that, if a commercial practice satisfies all the criteria specified in Article 6(1) of that directive for being categorised as a misleading practice in relation to the consumer, it is not necessary to determine whether such a practice is also contrary to the requirements of professional diligence as referred to in Article 5(2)(a) of the UCPD in order for it legitimately to be regarded as unfair and, therefore, prohibited in accordance with Article 5(1) of the UCPD (par. 16).

AG Wahl focused on the second question and denied that a communication of false information to a single consumer may be regarded as a commercial practice within the meaning of the UCPD. According to AG Wahl, an act may be regarded as a commercial practice within the meaning of the UCPD, when either or both of the two following conditions are fulfilled: 
- the conduct is directed towards an unspecified group of addressees; 
- the conduct is repeated in relation to more than one consumer (par. 23). 

The CJEU has not yet dealt with a question concerning the classification of an isolated act of a trader affecting a single consumer in light of the UCPD. AG Wahl is of the disputable opinion that the UCPD is aimed at the protection of the collective interests of consumers (par. 32). It is, of course, possible that the CJEU will not share the opinion delivered yesterday, but whatever the judgment may decide it will be certain to further clarify the scope of the UCPD.

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