JUDGMENT OF THE COURT (First Chamber)

16 April 2015 ( *1 )

‛Reference for a preliminary ruling — Directive 2005/29/EC — Unfair commercial practices — Erroneous information provided by a telecommunications undertaking to one of its subscribers which has resulted in additional costs for the latter — Classification as a ‘misleading commercial practice’’

In Case C‑388/13,

REQUEST for a preliminary ruling under Article 267 TFEU from the Kúria (Hungary), made by decision of 14 May 2013, received at the Court on 8 July 2013, in the proceedings brought by

Nemzeti Fogyasztóvédelmi Hatóság,

other party:

UPC Magyarország Kft.,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, A. Borg Barthet, E. Levits, M. Berger and F. Biltgen (Rapporteur), Judges,

Advocate General: N. Wahl,

Registrar: I. Illéssy, Administrator,

having regard to the written procedure and further to the hearing on 11 September 2014,

after considering the observations submitted on behalf of:

—

UPC Magyarország Kft., by A. Simon, ügyvéd,

—

the Hungarian Government, by M. Fehér and K. Szíjjártó, acting as Agents,

—

the European Commission, by M. van Beek and A. Tokár, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 23 October 2014,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) ( OJ 2005 L 149, p. 22 ).

2The request has been made in proceedings between the Nemzeti Fogyasztóvédelmi Hatóság (the Hungarian consumer protection authority) and UPC Magyarország Kft. (‘UPC’) concerning erroneous information which had been provided by UPC to one of its subscribers and which gave rise to additional costs for that subscriber.

Legal context

EU law

3Recitals 5 to 9, 11 to 14, 18 and 22 in the preamble to the Unfair Commercial Practices Directive state as follows:

‘(5)

… obstacles to the free movement of services and goods across borders or the freedom of establishment … should be eliminated. These obstacles can only be eliminated by establishing uniform rules at Community level which establish a high level of consumer protection and by clarifying certain legal concepts at Community level to the extent necessary for the proper functioning of the internal market and to meet the requirement of legal certainty.

(6)

This Directive therefore approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers’ economic interests and thereby indirectly harm the economic interests of legitimate competitors. …

(7)

This Directive addresses commercial practices directly related to influencing consumers’ transactional decisions in relation to products. …

(8)

This Directive directly protects consumer economic interests from unfair business-to-consumer commercial practices. Thereby, it also indirectly protects legitimate businesses from their competitors who do not play by the rules in this Directive and thus guarantees fair competition in fields coordinated by it. …

(9)

This Directive is without prejudice to individual actions brought by those who have been harmed by an unfair commercial practice. It is also without prejudice to Community and national rules on contract law …

…

(11)

The high level of convergence achieved by the approximation of national provisions through this Directive creates a high common level of consumer protection. This Directive establishes a single general prohibition of those unfair commercial practices distorting consumers’ economic behaviour. …

(12)

Harmonisation will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating all aspects of unfair commercial practices across the EU. …

(13)

… The single, common general prohibition established by this Directive … should apply equally to unfair commercial practices which occur … following the conclusion of a contract and during its execution. The general prohibition is elaborated by rules on the two types of commercial practices which are by far the most common, namely misleading commercial practices and aggressive commercial practices.

(14)

It is desirable that misleading commercial practices cover those practices, including misleading advertising, which by deceiving the consumer prevent him from making an informed and thus efficient choice. …

…

(18)

… In line with the principle of proportionality, and to permit the effective application of the protections contained in it, this Directive takes as a benchmark the average consumer, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors, as interpreted by the Court of Justice …

…

(22)

It is necessary that Member States lay down penalties for infringements of the provisions of this Directive and they must ensure that these are enforced. The penalties must be effective, proportionate and dissuasive.’

4Under Article 1 of the Unfair Commercial Practices Directive:

‘The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating the laws, regulations and administrative provisions of the Member States on unfair commercial practices harming consumers’ economic interests.’

5Article 2 of that directive provides:

‘For the purposes of this Directive:

(a)

“consumer” means any natural person who, in commercial practices covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession;

(b)

“trader” means any natural or legal person who, in commercial practices covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader;

(c)

“product” means any goods or service …

(d)

“business-to-consumer commercial practices” (hereinafter also referred to as commercial practices) means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers;

…

(h)

“professional diligence” means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader’s field of activity;

…’

6Article 3 of the Unfair Commercial Practices Directive provides:

‘1. This Directive shall apply to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product.

2. This Directive is without prejudice to contract law and, in particular, to the rules on the … effect of a contract.

…’

7Article 5 of the Unfair Commercial Practices Directive, entitled ‘Prohibition of unfair commercial practices’, is worded as follows:

‘1. Unfair commercial practices shall be prohibited.

2. A commercial practice shall be unfair if:

(a)

it is contrary to the requirements of professional diligence,

and

(b)

it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.

…

4. In particular, commercial practices shall be unfair which:

(a)

are misleading as set out in Articles 6 and 7,

…

5. Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. The same single list shall apply in all Member States and may only be modified by revision of this Directive.’

8As is evident from their titles, Articles 6 and 7 of the Unfair Commercial Practices Directive define respectively ‘misleading actions’ and ‘misleading omissions’.

9Article 6(1) of that directive provides:

‘A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

(a)

the existence or nature of the product;

(b)

the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;

(c)

the extent of the trader’s commitments …

(d)

the price or the manner in which the price is calculated, or the existence of a specific price advantage;

…

(g)

the consumer’s rights …’

10Under Article 11 of the Unfair Commercial Practices Directive:

‘1. Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers.

Such means shall include legal provisions under which persons or organisations regarded under national law as having a legitimate interest in combating unfair commercial practices, including competitors, may:

(a)

take legal action against such unfair commercial practices;

and/or

(b)

bring such unfair commercial practices before an administrative authority competent either to decide on complaints or to initiate appropriate legal proceedings.

…

2. Under the legal provisions referred to in paragraph 1, Member States shall confer upon the courts or administrative authorities powers enabling them, in cases where they deem such measures to be necessary taking into account all the interests involved and in particular the public interest:

(a)

to order the cessation of, or to institute appropriate legal proceedings for an order for the cessation of, unfair commercial practices;

or

(b)

if the unfair commercial practice has not yet been carried out but is imminent, to order the prohibition of the practice, or to institute appropriate legal proceedings for an order for the prohibition of the practice,

even without proof of actual loss or damage or of intention or negligence on the part of the trader.

…’

11Article 13 of that directive provides:

‘Member States shall lay down penalties for infringements of national provisions adopted in application of this Directive and shall take all necessary measures to ensure that these are enforced. These penalties must be effective, proportionate and dissuasive.’

Hungarian law

12The Unfair Commercial Practices Directive was transposed into Hungarian law by Law No XLVII of 2008 on the prohibition of unfair commercial practices in relation to consumers.

The dispute in the main proceedings and the questions referred for a preliminary ruling

13It is apparent from the order for reference that, in April 2010, a private individual, Mr Szabó, who was a long-term subscriber with UPC, a provider of cable television services, and who wished to terminate the contract which he had concluded with that company, requested the latter to inform him of the specific period to which the invoice issued in 2010 related, given that that invoice did not contain information relating to that period.

14In its reply to Mr Szabó, UPC stated that the most recent annual invoice related to the ‘period between 11.01.2010 and 10.02.2011 inclusive’.

15Mr Szabó, who wished to ensure that the end of the contract that he had concluded with UPC would coincide with the last day of service already paid for, requested that the contract be terminated with effect from 10 February 2011.

16The provision of services was not terminated until 14 February 2011 and, on 12 March 2011, Mr Szabó received from UPC a document requesting him to pay the sum of 5243 Hungarian Forints (HUF) in respect of arrears of payment for the period up to 14 February 2011.

17Mr Szabó lodged a complaint with the Budapest Főváros Kormányhivatala Fogyasztóvédelmi Felügyelősége (Consumer Protection Inspectorate under the governmental administration of Budapest) in which he submitted that he had been provided with erroneous information, as a result of which he had had to pay an additional amount of HUF 5243, being required to incur the costs of subscription to two different service providers relating to the same period even though the provision of services concerned was of such a nature that it could not be received from both providers at the same time.

18By a decision of 11 July 2011, that inspectorate ordered UPC to pay a fine of HUF 25000 in respect of an unfair commercial practice, in accordance with Law No XLVII of 2008 on the prohibition of unfair commercial practices in relation to consumers. That decision was upheld on 10 October 2011 by the Nemzeti Fogyasztóvédelmi Hatóság, acting as the second-level authority, which took the view that the communication of erroneous information itself constituted an infringement of the requirement of professional diligence, and that it was not necessary to carry out a separate examination of the infringement of that requirement in the present case.

19In an action brought by UPC, the Fővárosi Törvényszék (Budapest Municipal Court) varied the decision of that national authority of 10 October 2011 and set aside the fine imposed on that company. That court held that the question of the infringement of the requirement of professional diligence had to be examined also in the case where erroneous information had been provided and that such an infringement could not be established, since that examination showed that the professional concerned had not intended to mislead the consumer.

20In the present case, according to the Fővárosi Törvényszék, UPC’s conduct did not constitute continuous conduct and an isolated administrative error relating to a single client could not be classified as a ‘practice’. At issue in the present case, it found, was a simple clerical error which had occurred through the inscription of a figure (‘2’ to represent the month of February instead of ‘1’ to represent January) and, in addition, the consumer concerned could have obtained the correct information from several other sources.

21The Fővárosi Törvényszék added that the dispute before it did not relate to the price, or the manner of calculating the price, or to the existence of a specific price advantage, within the meaning of Article 6(1)(d) of the Unfair Commercial Practices Directive, with the result that the information provided by UPC was not misleading, but merely erroneous. That finding, it stated, was supported by the fact that the Nemzeti Média- és Hírközlési Hatóság (the National Media and Telecommunications Authority) had rejected the complaint brought before it in the same case.

22In support of the appeal in cassation brought by the Nemzeti Fogyasztóvédelmi Hatóság before the Kúria (Hungarian Supreme Court), that national authority observes first of all that UPC does not dispute the fact that it communicated erroneous information, on the basis of which the consumer determined the date on which he cancelled his subscription.

23It submits, next, that, in the case where such information is communicated, it is not necessary to examine separately the question of the infringement of the requirement of professional diligence.

24Furthermore, the Nemzeti Fogyasztóvédelmi Hatóság disputes the contention that the existence of a ‘commercial practice’ cannot be confirmed in the case where the conduct which is the subject of the complaint concerns only one single consumer. Articles 6 to 9 of the Unfair Commercial Practices Directive, it argues, use the word ‘consumer’ always in the singular and that directive must be interpreted in accordance with the objective which it pursues.

25Finally, according to that authority, the erroneous information at issue concerns the manner of calculating the price, for the purposes of Article 6(1)(d) of that directive, or, at least, the determination of the period covered by the service and comes under Article 6(1)(b) of that directive as a main characteristic of the service provided.

26It was in those circumstances that the Kúria decided to stay the proceedings before it and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)

Is Article 5 of the Unfair Commercial Practices Directive to be interpreted as precluding, in respect of misleading commercial practices within the meaning of Article 5(4) of that directive, a separate examination of the criteria laid down in Article 5(2)(a) of that directive?

(2)

May a communication of false information to a single consumer be regarded as a commercial practice within the meaning of that directive?’

Consideration of the questions referred for a preliminary ruling

27First of all, it must be stated that the first question referred assumes that a situation such as that at issue in the main proceedings comes within the scope of the Unfair Commercial Practices Directive.

28First, it is only where a communication of information, such as that at issue in the main proceedings, can be classified as a ‘commercial practice’, within the meaning of Article 2(d) of that directive, that it will be necessary to determine the conditions which must be satisfied by that practice in order for it to be regarded as ‘misleading’ within the meaning of Articles 6 and 7 of that directive.

29Secondly, it is in the context of the examination of the second question that the Court will be required to rule on the meaning and scope of the concept of ‘commercial practice’ for the purposes of the application of that directive.

30In those circumstances, it is necessary to answer the second question first.

The second question

31The second question seeks essentially to determine whether the Unfair Commercial Practices Directive must be interpreted as meaning that the communication, by a professional to a consumer, of erroneous information, such as that at issue in the main proceedings, is capable of being classified as a ‘misleading commercial practice’, within the meaning of that directive, even though that information concerned only one single consumer.

33Secondly, the need for uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union (see, inter alia, judgment in Zentrale zur Bekämpfung unlauteren Wettbewerbs , C‑59/12, EU:C:2013:634 , paragraph 25 and the case-law cited).

35Thus, the sole criterion referred to in that provision is that the trader’s practice must be directly connected with the promotion, sale or supply of a product or service to consumers (see, inter alia, judgments in Plus Warenhandelsgesellschaft , C‑304/08, EU:C:2010:12 , paragraph 39, and in CHS Tour Services , C‑435/11, EU:C:2013:574 , paragraph 27).

37In the light of the foregoing, the communication of information, as in the main proceedings, made by an undertaking in the context of the after-sales service relating to a subscription to cable television services by an individual must be regarded as coming within the concept of ‘commercial practice’, within the meaning of the Unfair Commercial Practices Directive.

38Moreover, in accordance with Article 5(1) and (4) of that directive, misleading commercial practices, inter alia, are unfair and prohibited.

39As is apparent from the actual wording of Article 6(1) of that directive, a commercial practice is to be regarded as misleading if it contains false information and is therefore untruthful or in any way deceives, or is likely to deceive, the average consumer, in relation to, inter alia, the main characteristics of a product or service, including after-sales service, the price or the manner in which the price is calculated and consumer rights, and if it causes, or is likely to cause, the consumer to take a commercial decision that he would otherwise not have taken.

40It should be considered that, as is apparent from the order for reference, all the factors set out in that provision are present in a situation such as that at issue in the main proceedings. That situation is characterised by the fact that a consumer received from a professional, and following his request to exercise his right to terminate a contract for services concluded with that professional, erroneous information as to the duration of the relationship between the two parties, and by the fact that the mistake made by the undertaking prevented the individual from making an informed choice and, moreover, occasioned him additional costs.

41In this regard, it should be stated that the fact that the action of the professional concerned took place on only one occasion and affected only one single consumer is immaterial in this context.

42Neither the definitions set out in Articles 2(c) and (d), 3(1) and 6(1) of the Unfair Commercial Practices Directive nor the latter, considered as a whole, contain any indication that the act or omission on the part of the professional must be recurrent or must concern more than one consumer.

43In the light of the need to protect consumers which underlies that directive, those provisions cannot be interpreted as imposing conditions of that kind where they do not even set out such conditions explicitly (see, to that effect, judgment in CHS Tour Services , C‑435/11, EU:C:2013:574 , paragraph 41).

44Furthermore, the view supported by UPC, according to which an isolated act on the part of a professional which affected only one single consumer cannot be regarded as constituting a ‘practice’, within the meaning of the Unfair Commercial Practices Directive, would be liable to give rise to serious disadvantages.

45In the first place, that directive does not establish a threshold, whether in terms of frequency or the number of consumers concerned, beyond which an act or omission must come within the scope of that directive, with the result that the argument put forward by UPC is not compatible with the principle of legal certainty.

46In the second place, that argument implies that it is for the consumer to establish that other individuals have been harmed by that same operator, even though, in practice, it is extremely difficult to provide such evidence.

47Furthermore, the fact that conduct such as that at issue in the main proceedings is allegedly unintentional is also entirely irrelevant.

48Article 11 of the Unfair Commercial Practices Directive expressly provides that the application of measures taken by the Member States in order to combat such practices is independent of evidence of intention, or indeed negligence, on the part of the professional, and is independent of evidence of actual harm suffered by the consumer.

49In any event, as is apparent from the use of the word ‘likely’, Article 6 of the Unfair Commercial Practices Directive is essentially preventive in nature, with the result that, for the purposes of the application of that article, it suffices that the professional communicated objectively erroneous information which was capable of adversely influencing the consumer’s commercial decision.

50In the present case, it is evident that, had it not been for the mistake as to the date made by UPC, the other party to the contract would not have terminated his contract with effect from 10 February 2011, where the relevant date was 10 January 2011, and that, with respect to the time which had elapsed between those two dates, an additional cost was imposed on that party. Moreover, as has already been stated in paragraph 48 of the present judgment, and by analogy with the Court’s ruling in the judgment in Purely Creative and Others (C‑428/11, EU:C:2012:651 , paragraph 57), the fact that the additional cost imposed on the consumer is insignificant is irrelevant in that regard.

54In the light of the foregoing considerations, UPC’s assertion that the consumer, in this case, could himself have obtained the correct information must therefore be regarded as irrelevant.

55In those circumstances, it must be held that conduct such as that alleged against UPC in the main proceedings comes within the scope of the Unfair Commercial Practices Directive and, as a result, is subject to the requirements which that directive lays down.

60In the light of all of the foregoing considerations, the answer to the second question is that the Unfair Commercial Practices Directive must be interpreted as meaning that the communication, by a professional to a consumer, of erroneous information, such as that at issue in the main proceedings, must be classified as a ‘misleading commercial practice’, within the meaning of that directive, even though that information concerned only one single consumer.

The first question

61By its first question, the referring court asks, in essence, whether the Unfair Commercial Practices Directive must be interpreted as meaning that, if a commercial practice meets all of the criteria specified in Article 6(1) of that directive for classification as a misleading practice in relation to the consumer, it still remains 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 that directive, in order for it legitimately to be regarded as unfair and, consequently, prohibited in accordance with Article 5(1) of that directive.

62The Court has, however, already ruled on that question in the judgment in CHS Tour Services (C‑435/11, EU:C:2013:574 ) and the answer given in that judgment is fully applicable to the present case.

63In those circumstances, on the same grounds as those set out in paragraphs 31 to 47 of the judgment in CHS Tour Services (C‑435/11, EU:C:2013:574 ), the answer to the first question is that the Unfair Commercial Practices Directive must be interpreted as meaning that, if a commercial practice meets all of the criteria specified in Article 6(1) of that directive for classification as a misleading practice in relation to the consumer, it is not necessary further to determine whether such a practice is also contrary to the requirements of professional diligence, as referred to in Article 5(2)(a) of that directive, in order for it legitimately to be regarded as unfair and, consequently, prohibited in accordance with Article 5(1) of that directive.

Costs

64Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

1.Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) must be interpreted as meaning that the communication, by a professional to a consumer, of erroneous information, such as that at issue in the main proceedings, must be classified as a ‘misleading commercial practice’, within the meaning of that directive, even though that information concerned only one single consumer.

2.Directive 2005/29 must be interpreted as meaning that, if a commercial practice meets all of the criteria specified in Article 6(1) of that directive for classification as a misleading practice in relation to the consumer, it is not necessary further to determine whether such a practice is also contrary to the requirements of professional diligence, as referred to in Article 5(2)(a) of that directive, in order for it legitimately to be regarded as unfair and, consequently, prohibited in accordance with Article 5(1) of that directive.

[Signatures]

( *1 ) Language of the case: Hungarian.