The European Court of Justice (CJEU) has recently ruled that selling laptops as a combined offer with pre-installed software is not ‘unfair’ for the purposes of the Unfair Commercial Practices Directive 2005 (the Directive).
The Directive prohibits commercial practices which are ‘unfair’ or, in other words, misleading or aggressive. A ‘commercial practice’ means any commercial act forming part of the operator’s commercial strategy and relating to the promotion of that strategy.
The Directive sets out a list of 31 commercial practices which will always be unfair, without the need for further analysis. For any other commercial practice to be considered ‘unfair’, it must:
The case of Vincent Deroo-Blanquart v Sony Europe Limited, 7 September 2016, concerned a French consumer who purchased a Sony laptop which was equipped with pre-installed software. The software included the Windows Vista Home Premium operating system together with other software applications. Mr Deroo-Blanquart refused to accept the operating system’s end-user licence agreement and requested a refund from Sony of the part of the purchase price of the laptop which corresponded to the cost of the pre-installed software.
Sony refused the refund on the basis that the laptop and software were a single, non-separable offer. Instead, Sony offered to cancel the sale and refund the entirety of the purchase price. Mr Deroo-Blanquart refused that offer and issued proceedings in the French courts.
Mr Deroo-Blanquart was unsuccessful at first instance and again on appeal to the court of appeal. When Mr Deroo-Blanquart appealed to the French court of cassation, the court decided to stay the proceedings to refer certain questions to the CJEU.
The CJEU stated that combined offers, such as the linking together of a laptop and pre-installed software, constitute a ‘commercial practice’ for the purposes of the Directive. However, combined offers did not fall within the list of 31 automatically unfair commercial practices. The CJEU therefore had to consider whether this type of combined offer a) was contrary to the requirements of professional diligence; and b) materially distorted, or was likely to materially distort, the economic behaviour of the average consumer.
Taking into account all of the above, the CJEU considered that the combined offer of a laptop together with pre-installed software would not in itself constitute an unfair commercial practice. It would be for national courts to determine on a case-by-case basis whether this type of offer satisfies the requirements for an ‘unfair’ commercial practice.
This decision will be welcomed by technology manufacturers wishing to offer their devices with certain types of software already installed. However, those manufacturers should note that whilst this type of combined offer will not in itself be ‘unfair’, it may not automatically be 'fair'. Manufacturers should makes sure consumers are appropriately informed of the existence and the nature of any pre-installed software so that consumers can exercise choice to purchase a different model or brand if desired.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.