Joined Cases C‑54/17 and C‑55/17
Autorità Garante della Concorrenza e del Mercato
v
Wind Tre SpA
and
Vodafone Italia SpA
(Requests for a preliminary ruling from the Consiglio di Stato)
(References for a preliminary ruling — Consumer protection — Directive 2005/29/EC — Unfair commercial practices — Article 3(4) — Scope — Articles 5, 8 and 9 — Aggressive commercial practices — Annexe I, point 29 — Commercial practices which are aggressive in all circumstances — Inertia selling — Directive 2002/21/EC — Directive 2002/22/EC — Telecommunication services — Sale of SIM (Subscriber Identity Module) cards containing certain pre-installed and pre-activated services — Failure to give prior information to consumers)
Summary — Judgment of the Court (Second Chamber), 13 September 2018
Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Aggressive commercial practices — Practices which are in all circumstances considered unfair — Inertia selling — Meaning — Sale of SIM cards without the user having been sufficiently informed, in advance, of the pre-installed and pre-activated services on those SIM cards, nor of their cost — Included
(European Parliament and Council Directive 2005/29, Art. 8 and Annex I, point 29)
Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Scope — Inertia selling of electronic communications services — Included — National rules subjecting the assessment of conduct constituting inertia selling to the provisions of Directive 2005/29 and, accordingly, to the jurisdiction of a national regulatory authority with cross-sectorial competencies, with the result that the national regulatory authority within the meaning of Directive 2002/21 does not have jurisdiction to penalise such conduct — Lawfulness
(European Parliament and Council Directives 2002/21, as amended by Directive 2009/140, 2002/22, as amended by Directive 2009/136, Arts 1 (4) and 20 (1) and 2005/29, Art. 3(4), and Annex I, point 29)
The concept of ‘inertia selling’ within the meaning of Annex I, point 29 to Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) must be interpreted as including, subject to verifications by the referring court, conduct, such as that at issue in the main proceedings, whereby a telecommunications operator sells SIM (Subscriber Identity Module) cards on which services such as internet browsing services and voicemail services are pre-loaded and pre-activated without first sufficiently informing the consumer of that pre-loading and pre-activation, nor the cost of those services.
(see para. 56, operative part 1)
Article 3 (4) of Directive 2005/29 must be interpreted as not precluding national rules under which conduct constituting inertia selling, within the meaning of Annex I, point 29 to Directive 2005/29, such as that at issue in the main proceedings, must be assessed in the light of the provisions of that directive, with the result that, according to that legislation, the national regulatory authority, within the meaning of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, does not have jurisdiction to penalise such conduct.
In that regard, it should be borne in mind that Article 3 (4) of Directive 2005/29 provides that, in the case of conflict between the provisions of that directive and other EU rules regulating specific aspects of unfair commercial practices, the latter are to prevail and apply to those specific aspects. As a result, as confirmed by recital 10, that directive applies only when there are no specific EU provisions regulating specific aspects of unfair commercial practices. As the Advocate General noted in points 124 and 126 of his Opinion, the term ‘conflict’ refers to the relationship between the provisions in question which goes beyond a mere disparity or simple difference, showing a divergence which cannot be overcome by a unifying formula enabling both situations to exist alongside each other without the need to bring them to an end. Accordingly, a conflict such as that envisaged in Article 3 (4) of Directive 2005/29 is present only where provisions, other than those of Directive 2005/29, which regulate specific aspects of unfair business practices, impose on undertakings, in such a way as to leave them no margin for discretion, obligations which are incompatible with those laid down in Directive 2005/29.
However, although Article 20(1) of the Universal Service Directive requires, with regard to electronic communications, the provider of services to include certain information in the contract, neither this provision nor any other provision in that directive contains rules regulating specific aspects of unfair commercial practices, such as inertia selling, within the meaning of Annex I, point 29 to Directive 2005/29. In addition, it should be noted that Article 1(4) of the Universal Service Directive provides that the provisions of that directive concerning end-users’ rights are to apply without prejudice to Union rules on consumer protection and national rules in conformity with Union rules. It follows that there is no conflict between the provisions of Directive 2005/29 and the rules laid down by the Universal Service Directive as regards the rights of end-users.
(see paras 58, 60, 61, 66-68, 70, operative part 2)