Legal Literature

Unfair Commercial Practices Directive, Chapter 2, Article 5 Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7

The author comments the decision No. [09/09169] of 05/05/2011 according to which the sale of computers with pre-installed software is an unfair commercial practice. In particular, the article deals with both legal and technical aspects of the sanction that was imposed on the trader in the case of UFC Que Choisir c/ SAS Hewlett-Packard. In the commented case, the trader was ordered to stop selling the computers with pre-installed software without allowing consumers to refuse the software with a deduction of its price. According to the author, this sanction goes further than the UCP Directive because it forbids the trading in of a certain type of goods.

Furthermore, the author notes that the notion of professional diligence was applied and interpreted broadly by the court, as it seems that it does not exactly refer to the definition given by the UCP Directive.

The author considers that the question of whether the economic behavior of the average consumer could be substantially altered within the meaning of article 5 of the UCP Directive shall be answered by the court of cassation. In the same way, he notes that there is misleading commercial practice within the meaning of article 7 of the UCP Directive if the omitted information is substantial for the average consumer having an impact on his transactional decision.

Finally, the author regards the requirement for consumer information as being insufficient to compel computer traders to sell computers without pre-installed software or to create an uninstallation/reimbursement service.