Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1. Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8

Making the possibility to enjoy a product subject to the purchase of another product, when such is clearly indicated in the trader's invitation to purchase, does not constitute an unfair commercial practice.

The plaintiff is a television broadcaster who acquired the (partial) rights to broadcast the French national football competition. Plaintiff also offered services such as high speed internet, and combined its offer to subscribe to the French football competition to the obligation also to subscribe to one of the high speed internet packages it offered. In other words, French viewers could only enjoy a football subscription if they equally subscribed to an internet subscription.

The defendant, a telecommunications provider who also offered internet and other services, filed a cease-and-desist order against the plaintiff claiming that such a combined offer was contrary to the provision L.122-1 of the French consumer code which provides such a prohibition.

In first instance, the defendant's request was granted and the plaintiff was ordered immediately to cease its combined offer under the penalty of a period penalty payment. In addition, plaintiff was ordered to make the decision of the judge public on its website.

The plaintiff appealed against this decision.

Does combining an offer to the purchase of another product, when such is clearly indicated in the trader's invitations to purchase, constitute an unfair commercial practice?

The court first refers to the provision as set out in article L.122-1 of the French Consumer Code, which entails a prohibition on combined sales. The court then refers to the then recently issued court judgment of the European Court of Justice (joint cases C-261/07 and C-299/07) in which it was held that the UCP Directive should be interpreted as such that it does not allow commercial practices, even with certain exceptions,  to be prohibited in a general manner by national law.

The court further states that, due to its obligations under European law, it must interpret the national legislation in accordance with the European legal principles and case law of the ECJ, thus ensuring the full effect of the UCP Directive. Therefore, the court considers that the provisions as laid down in the article L. 122-1 of the French Consumer Code, are not compatible with European law and cannot be applied in order to prohibit plaintiff from pursuing its commercial practice of a combined offer.

Secondly, the court investigates whether on the general basis of misleading and/or aggressive commercial practices, it could consider the commercial practice of the plaintiff unlawful. First, the court refers to the fact that the condition that a subscription to watch the football competition was linked to a subscription to a high speed internet formula, was clearly indicated in plaintiff's offers. Therefore, the court ruled no misleading commercial practice could be established. Next, in the court's opinion neither was there any way that the plaintiff's practices were to be considered aggressive.

URL: http://www.arcep.fr/fileadmin/reprise/textes/recours/ca-arr-140509-orange.pdf

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The court ruled in favour of the plaintiff. As a result, the court of appeal dismissed the first court's ruling.