The ECJ was asked to consider whether the sale of Sony laptops with software already pre-installed, without enabling the consumers to have the option to be able to purchase the laptop without the software, could be deemed as ‘unfair’ under the Unfair Commercial Practices Directive (2005/29/EC) (UCPD). The UCPD is implemented by the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) in the UK.
It was held that the sale of the laptop with the pre-installed software formed a combined offer and the fairness of the commercial practice could be scrutinised under the UCPD.
It must be highlighted however that a combined offer is not automatically unfair. The case of VTB-VAB NV v Total Belgium NV (C-261/07) is demonstrative of this fact. The fairness of each case must be considered on its own merit.
In this instance, in reaching their decision, the ECJ asked the following questions:
- Was the combined offer of laptop and pre-installed software contrary to the requirements of professional diligence?
- Were consumers made aware that the laptop came equipped with the pre-installed software?
- Was market research done to assess whether consumers were in favour of purchasing the laptop with pre-installed software?
- Had the retailer offered any type of refund or cancellation for the combined purchase?
The ECJ noted that the consumer was told in advance that the software was pre-installed. There was also evidence indicating that a significant proportion of consumers want pre-installed software. The retailer had also offered to cancel and refund the combined purchase if necessary. These factors were likely to satisfy the requirements for honest market practice or good faith in the field of the manufacturing of computer equipment for the general public.
Did the combined offer materially distort, or was it likely to materially distort, the economic behaviour of the average consumer with regard to the product?
The ECJ held that as consumers were given prior notice that the laptop came equipped with the pre-installed software. It was up to consumers to decide whether or not to make the purchase. Consequently, consumers could buy other models and brands with similar specifications without pre-installed software, or with different software installed.
The question for the ECJ to determine therefore was whether owing to this, had the consumers’ ability to make an informed decision been impaired?
It should be highlighted that as per the ECJ’s findings in this instance, the failure to indicate the price of each items of software in the sale of a laptop with pre-installed software and sold as combined offer, was not a misleading commercial practice. The ability to make an informed decision had not been taken away from the consumer. Neither would it lead the average consumer to form a decision that otherwise would not have been made. In other words, the consumers’ decision making ability had not been impaired.
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