In a judgment dated 7 September 2016 (case C-310/15), the Court of Justice ruled on a commercial practice consisting of the sale of a computer with pre-installed software without any option for the consumer to purchase the same model of computer without that software. The Court confirms that this practice does not in itself constitute an unfair commercial practice, unless it is contrary to the requirements of professional diligence and materially distorts or is likely to distort the economic behaviour of the average consumer with regard to the product.
The facts
A French consumer bought a Sony computer, equipped with pre-installed software including Microsoft Windows. When using the computer for the first time, the consumer refused to subscribe to the operating system's "end-user licence agreement" displayed on the screen, and requested reimbursement from Sony of the part of the purchase price corresponding to the cost of the pre-installed software.
Sony refused to make such reimbursement, arguing that the computer and the pre-installed software form part of a single and non-separable offer. As a compromise, it offered to cancel the sale and to reimburse the entire sale price, subject to the return of the equipment. The consumer declined the offer and started proceedings for unfair commercial practice.
The ruling of the Court of Justice
The Court of Justice ruled, inter alia, on the question whether the sale of a computer equipped with pre-installed software, without any option for the consumer to purchase the same model without that software, constitutes an unfair commercial practice. Further, the question arose whether the failure to indicate the price of each of the software items constitutes a misleading commercial practice.
The Court of Justice referred to its earlier case law with regard to combined offers (VTB-VAB and Galatea, C-261/07 and C-299/07) and ruled as follows:
1. A combined offer, such as that of Sony, does not as such constitute an unfair commercial practice, unless it is contrary to the requirements of professional diligence and materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product. This is a matter for the national court to determine.
2. In its assessment, the national court must take into account the specific circumstances of the case, including the fact that:
- the consumer was duly informed of the existence and the specifications of the pre-installed software;
- according to an analysis of the market concerned, the combined offer met the expectations of a significant portion of consumers who prefer to purchase a computer which is ready for immediate use rather than to purchase a computer and software separately;
- the consumer was offered the choice of accepting all aspects of the offer or cancelling the sale; and
- the consumer had been duly informed, prior to the purchase, that the computer model concerned was not marketed without the pre-installed software and that he was therefore free to choose another model, of another brand, with similar technical specifications, sold without software or with different software.
3. The failure to indicate the price of each of the items of pre-installed software did not prevent the consumer from taking an informed decision on his purchase, since the computer was, in any case, not offered for sale without that software. As a result, such a practice does not constitute a misleading commercial practice.
This judgment indicates that companies that offer for sale devices with pre-installed software, and do not offer an alternative without that software, do not as such engage in an unfair commercial practice. Whether such a practice is unfair always has to be assessed on a case by case basis. The judgment gives some elements which can be used to make that assessment. In any event, duly informing the consumer, in a timely manner, about the existence and specifications of the pre-installed software is of fundamental importance.