The Court of Justice of the European Union has given judgment in Case-310/15 Vincent Deroo-Blanquart v Sony Europe Limited and has broadly endorsed the common practice of supplying pre-installed software with new computers and charging for it indirectly.
In 2008, Vincent Deroo-Blanquart acquired a Sony laptop in France equipped with pre-installed software (namely Windows Vista Home Premium operating system and various other software applications). When using that computer for the first time, Mr Deroo-Blanquart refused to subscribe to the operating system’s ‘end-user licence agreement’ (EULA) and asked to be reimbursed by Sony for the part of the purchase price of the computer corresponding to the cost of the preinstalled software. Sony refused to process that reimbursement but offered to cancel the sale and to reimburse Mr Deroo-Blanquart the entirety of the sale price, namely €549, subject to the return of the equipment purchased.
Mr Deroo-Blanquart declined that offer and brought legal proceedings against Sony for €450 as a lump sum for the pre-installed software and for €2,500 for the damage suffered as a result of unfair commercial practices. The Unfair Commercial Practices Directive (Directive 2005/29/EC) prohibits unfair commercial practices which distort the economic behaviour of consumers and which are contrary to the requirements of professional diligence, including, in particular, misleading commercial practices and aggressive commercial practices.
The French Cour de cassation (Court of Cassation), which is hearing the case on appeal, asked the CJEU:
· whether a commercial practice consisting of the sale of a computer equipped with pre-installed software without any option for the consumer to purchase the same model of computer not equipped with pre-installed software constitutes an unfair commercial practice
· whether, in the context of a combined offer consisting of the sale of a computer equipped with pre-installed software, the failure to indicate the price of each item of software constitutes a misleading commercial practice.
In its judgment of 7 September, the CJEU found that the sale of a computer equipped with pre-installed software does not in itself constitute an unfair commercial practice within the meaning of the Unfair Commercial Practices Directive when such an offer is not contrary to the requirements of professional diligence and does not distort the economic behaviour of consumers. It will be for the national court to determine this issue by taking into account the specific circumstances of the case.
The CJEU also points out at the outset that the sale of such equipped computers can satisfy the requirements of professional diligence, taking account of the fact that:
(1) the sale by Sony of computers with pre-installed software meets the expectations of a significant proportion of consumers who prefer to purchase a computer already equipped and ready for immediate use, rather than to purchase a computer and software separately;
(2) prior to the purchase of the computer, Mr Deroo-Blanquart was duly informed via Sony’s retailer of the existence of pre-installed software and the specific nature of each of those items of software, and
(3) following the purchase, when using the computer for the first time, Sony offered Mr Deroo-Blanquart the option of subscribing to the EULA or cancelling the sale. This issue is, again, for the national court to determine.
While pointing out that the information provided, before the conclusion of a contract, on the terms of the contract and the consequences of such conclusion is of fundamental importance for consumers, the CJEU goes on to indicate that the national court must determine whether, in the situation where a consumer is informed before the sale that the model of computer is not marketed without pre-installed software and that he is therefore free to choose another model of computer, of another brand, with similar technical specifications and sold without software, the ability of that consumer to make an informed transactional decision was appreciably impaired.
The CJEU restate the view that a commercial practice is to be regarded as misleading if it omits material information that the average consumer needs in order to make an informed transactional decision and thereby causes, or is likely to cause, the average consumer to make a transactional decision that he would not have taken otherwise. In the context of a combined offer consisting of the sale of a computer equipped with pre-installed software, the CJEU takes the view that the failure to indicate the price of each item of software is not such as to prevent the consumer from taking an informed transactional decision, or likely to cause the average consumer to make a transactional decision that he would not have taken otherwise. Since the price of each of those items of software therefore does not constitute material information, the failure to indicate the price of each of those items of software does not constitute a misleading commercial practice.
The full judgement is available here.
