Photo © Anatoly Vartanov – Fotolia
(LUXEMBOURG) – The sale of a computer equipped with a pre-installed copy of Windows does not in itself contravene EU rules on unfair commercial practices, the European Court of Justice ruled on Wednesday.
The case concerned a Sony laptop bought in France pre-installed with a Windows operating system as well as various other software applications.
When using that computer for the first time, the plaintiff refused to subscribe to the operating system’s ‘end-user licence agreement’ and asked to be reimbursed by Sony for the part of the purchase price of the computer corresponding to the cost of the pre-installed software.
Sony refused that particular reimbursement, instead offering to cancel the sale and reimburse the entire sale price, namely EUR 549, subject to return of the equipment purchased.
The plaintiff declined, instead bringing legal proceedings against Sony for EUR 450 as a lump sum for the pre-installed software and also for EUR 2,500 for the damage suffered as a result of unfair commercial practices.
The EU directive on unfair business-to-consumer commercial practices (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.
A French Court had asked the EU Court of Justice first, 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 and, second, 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.
The European Court rules that the sale of a computer equipped with pre-installed software does not in itself constitute an unfair commercial practice within the meaning of Directive 2005/29 , though this remains for the national court to determine taking into account the specific circumstances of the case ruling.
On the second question, the Court said a commercial practice is 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.
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, said the Court, or likely to cause the average consumer to make a transactional decision that he would not have taken otherwise.
Judgement in Case C-310/15 Vincent Deroo-Blanquart v Sony Europe Limited – Court documents
