VTB-VAB NV v. Total Belgium NV and Galatea BVBA v. Sanoma Magazines Belgium NV

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Court of Justice of European Union, VTB-VAB NV v. Total Belgium NV and Galatea BVBA v. Sanoma Magazines Belgium NV, C-261/07 and C-299/07, 23.04.2009

Type Judgement
Legal context EU
Abstract [[Abstract::The questions referred to the Court of Justice for a preliminary ruling are:

"Does [the] Directive … preclude a national provision such as Article 54 of the [1991 Law] on commercial practices, consumer information and consumer protection, which, except in the cases listed exhaustively in that Law, prohibits any combined offer by a vendor to a consumer, including an offer in which goods which the consumer has to buy are tied to a free service, the acquisition of which is linked to the purchase of the goods, and this regardless of the circumstances of the case, in particular regardless of the influence which the specific offer may have on the average consumer and of whether that offer can be considered in the specific circumstances to be contrary to professional diligence or fair commercial practices?"

"Do Article 49 of the EC Treaty concerning the freedom to provide services and [the] Directive … preclude a national provision such as Article 54 of the 1991 Law …, which, except in the cases listed exhaustively in that Law, prohibits any combined offer by a vendor to a consumer whereby the acquisition, whether or not free of charge, of products, services or other advantages or of vouchers with which they can be obtained is linked to the acquisition of other, even identical, products or services, and this regardless of the circumstances of the case, in particular regardless of the influence which the specific offer may have on the average consumer and of whether that offer can be considered in the specific circumstances to be contrary to professional diligence or fair commercial practices?"]]

Link http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130de054216a3fe47421bb7f6ea6ea0a2b116.e34KaxiLc3eQc40LaxqMbN4ObN0Me0?text=&docid=78002&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=114076
Topics Business Model, Competition, Consumer, Contract

Notes

In this decision, the CJEU states that a general principle prohibiting the making of combined offers by a vendor to a consumer can't be established by national laws of Member States.

In fact, the DIRECTIVE 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market established i. a maximum level of harmonisation between Member States, and ii. an exhaustive list (presented in Annex I)of practices which must be considered unfair in any circumstances, and without need for a case-by-case analysis. Now, this list doesn't include combined offers.

Combined offers clearly can be considered as commercial practices within the meaning of the Directive, and therefore - not being part of Annex I - they need to be examined following a case-by-case approach: they must satisfy the conditions set up in the above-mentioned Directive in order to be considered as an unfair commercial practice (therefore, they must be either misleading, either aggressive, either contrary to professional diligence and likely to distort the economic behaviour of the average consumer).