Unfair Commercial Practices Directive, Whereas, (9) Unfair Commercial Practices Directive, Chapter 1, Article 3, 9.

Article 3(9) of the Directive 2005/29 must not be interpreted as precluding a provision which generally prohibits – save in the cases exhaustively listed by the statute – any combined offer to the consumer where at least one component is a financial service.

Belgian law prohibits any combined offer to the consumer, of which at least one component is a financial service. The applicable law further provides some exceptions on this general prohibition.

The plaintiff, the importer of Citroën vehicles in Belgium, launched an advertising campaign in which it offered a 6 months' free insurance contract to every new sales contract concluded in the first year.

According to the defendant, this constituted a combined offer of which at least one component is a financial service, hence prohibited. The dispute between the parties was brought before the Belgian courts. The first judge agreed with the defendant and ruled that the offer constituted a prohibited combined offer (with financial service).

The Court of Appeal agreed with the first judge that the offer in question is indeed a combined offer, but doubts whether the Belgian rule which generally prohibits combined offers of which at least one component is a financial service, is compatible with the UCP Directive. According to the Court of Appeal, Article 3(9) of the Directive (which states that Member States may, in relation to financial services, impose more restrictive requirements) can be interpreted in three ways: (i) the prohibition of a combined offer involving a financial service is compatible with Directive 2005/29, regardless of whether the financial service constitutes the main component of the offer; (ii) the prohibition of such an offer is compatible with that directive only if the financial service is a decisive component of the combined offer; and (iii) such a prohibition is not compatible with that Directive 2005/29 in so far as Article 3(9) of that directive, being an exception to the principle of full harmonization, must be narrowly construed.

Must Article 3(9) of Directive 2005/29 be interpreted as precluding a provision which generally prohibits – save in the cases exhaustively listed by the statute – any combined offer to the consumer where at least one component is a financial service?

The Court, referring to the VTB-VAB case (joined cases C-261/07 and C-299/07) first reiterates that combined offers, including also those offers of which at least one component is a financial service, constitute commercial practices falling under Directive 2005/29.

The Court further states that, although the Directive 2005/29 is based on the principle of full harmonization, Article 3(9) of the Directive allows an exception to the objective of full harmonization in the case of requirements which relate to financial services. As the notion "financial service" used in Belgian consumer law corresponds to the notion used in Directive 2002/65, it follows that combined offers of which at least one component is a financial service fall within the scope of Article 3(9) of Directive 2005/29. Thus, so the Court holds, in accordance with that provision, Member States may impose requirements in relation to financial services which are more restrictive or "prescriptive" than those provided for under Directive 2005/29.  

URL: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF

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The plaintiff's arguments were not followed.