Case law

  • Case Details
    • National ID: Kúria Kfv.II.37.684/2013/2. (KGD2015. 98.)
    • Member State: Hungary
    • Common Name:link
    • Decision type: Supreme court decision
    • Decision date: 11/12/2013
    • Court: Curia (Supreme Court)
    • Subject:
    • Plaintiff: Unknown
    • Defendant: Nemzeti Fogyasztóvédelmi Hatóság (National Consumer Protection Authority)
    • Keywords: misleading price, professional diligence
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (d)
  • Headnote
    If a commercial practice meets all the criteria referred to in Article 6(1) of Directive 2005/29/EC (UCP Directive), it is not necessary to assess whether the commercial practice is contrary to the requirements of professional diligence as referred to in Article 5(2)(a) of the UCP Directive.
  • Facts
    The local consumer protection authority conducted a test purchase at the plaintiff's premises, where they determined that a product on sale was sold to them for the original, rather than the discounted price. As a result, the local consumer protection authority imposed a fine on the plaintiff. The plaintiff appealed the decision, but the defendant upheld it. In its decision, the defendant stated that indicating a discount on a product while selling it for the original price is considered a misleading commercial practice.

    The plaintiff contested the defendant's decision before court. The first instance court upheld the decision of the defendant. The plaintiff demanded the Curia's revision of the first instance judgement, stating that the first instance court failed to investigate the culpability of the plaintiff, which is necessary to assess whether a commercial practice is misleading. The plaintiff stated that one of its employees failed to put the new barcode on the product, despite the fact that the plaintiff provided the employee with every means to properly conduct his work. Therefore, the plaintiff had not infringed the requirements of professional diligence, and may not be held liable for the omission of its employee.

    The Curia initiated a preliminary ruling procedure, resulting in decision no. C-435/11. of the European Court of Justice. In its decision the ECJ held that if a commercial practice meets all the criteria listed in Article 6(1) of Directive 2005/29/EC (UCP Directive), then there is no need to assess whether the commercial practice is contrary to the requirements of professional diligence as referred to in Article 5(2)(a) of the UCP Directive. Therefore, the fact that the omission occurred on the part of an employee of the plaintiff does not affect the plaintiff's liability for the infringement, as the court does not need to investigate whether the requirements of professional diligence had been met.
  • Legal issue
    If a commercial practice meets all the criteria referred to in Article 6(1) of Directive 2005/29/EC (UCP Directive), it is not necessary to assess whether the commercial practice is contrary to the requirements of professional diligence as referred to in Article 5(2)(a) of the UCP Directive, because the liability for such misleading commercial practice is not subject to the culpability of the trader.
  • Decision

    If a commercial practice meets all the criteria referred to in Article 6(1) of Directive 2005/29/EC (UCP Directive), is it necessary to assess whether the commercial practice is contrary to the requirements of professional diligence as referred to in Article 5(2)(a) of the UCP Directive?

    Full text: Full text

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  • Result
    The Curia rejected the plaintiff's claims, and upheld the first instance judgement.