Case law

  • Case Details
    • National ID: No. 10-27.402
    • Member State: France
    • Common Name:link
    • Decision type: Supreme court decision
    • Decision date: 29/11/2011
    • Court: Supreme Court, Commercial Section (Paris)
    • Subject:
    • Plaintiff: Société Kelkoo
    • Defendant: Société Concurrence
    • Keywords: average consumer, economic behaviour, influence, transactional decision
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1.
  • Headnote
    The omission to provide information does not automatically constitute an unfair commercial practice. It must be proven that the commercial practice has or is likely to have an impact on the transactional behavior of the consumer.
  • Facts
    Plaintiff and defendant signed a partnership agreement for the promotion of the defendant's website through clickable links on plaintiff's website. Plaintiff's remuneration was based on the number of clicks. Plaintiff claimed that defendant had an obligation to pay the amount of plaintiff's invoices for traffic generation. Defendant refused to pay, arguing that plaintiff was liable for misleading commercial practices.

    Plaintiff's website, an online price comparator, did not contain any information on the fact that it was an advertising website, did not update prices in real time and did not indicate the periods of validity of the offers. It did not indicate the shipping costs, terms of warranty and principal specifications of the offered goods or services.

    According to the defendant, the plaintiff had therefore breached the prohibition on unfair commercial practices.

  • Legal issue
    The Supreme Court held that an omission to provide information cannot be automatically regarded as unfair. According to the court, each commercial practice, such as an omission to provide information, must be assessed in the light of its impact on the consumer's behavior.

    A commercial practice shall only constitute a prohibited misleading commercial practices when the practice at stake has an impact or is likely to have an impact on the economic behavior of the consumer.

  • Decision

    Does the information to provide information, automatically constitute an unfair commercial practice?


    Full text: Full text

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  • Result
    The plaintiff's request was granted.