Case C‑281/12

Trento Sviluppo srl andCentrale Adriatica Soc. coop. arl

v

Autorità Garante della Concorrenza e del Mercato

(Request for a preliminary ruling from the Consiglio di Stato)

‛Request for a preliminary ruling — Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29/EC — Article 6(1) — Concept of ‘misleading action’ — Cumulative nature of the conditions set out in the provision in question’

Summary — Judgment of the Court (Sixth Chamber), 19 December 2013

1. Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Misleading commercial practice — Concept — Practice satisfying cumulatively the conditions set out in Article 6(1) of that directive

   (European Parliament and Council Directive 2005/29, Arts 5(2) and 6(1))

2. Consumer protection — Unfair business-to-consumer commercial practices — Directive 2005/29 — Transactional decision — Concept — Scope

   (European Parliament and Council Directive 2005/29, Art. 2(k))

1.  A commercial practice must be classified as ‘misleading’ for the purposes of Article 6(1) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market where that practice contains false information, or is likely to deceive the average consumer, and is likely to cause the consumer to take a transactional decision that he would not have taken otherwise.

   Since the misleading commercial practices referred to in Article 6 of Directive 2005/29 constitute a specific category of unfair commercial practices, referred to in Article 5(2) of that directive, they must necessarily combine all the constituent elements of such unfairness, including, in consequence, the element relating to the ability of the practice to materially distort the economic behaviour of the consumer.

   (see paras 30, 38, operative part)

2.  Article 2(k) of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market must be interpreted as meaning that any decision directly related to the decision whether or not to purchase a product is covered by the concept of ‘transactional decision’.

   In that regard, the concept of ‘transactional decision’ for the purposes of Article 2(k) of Directive 2005/29 is broadly defined.

   Since the commercial practice concerns information relating to the availability of a product at an attractive price during a certain period, the acts preparatory to the purchase of a product, such as the consumer’s trip to the shop or the act of entering the shop, may be regarded as constituting transactional decisions for the purposes of the directive.

   (see paras 35, 36, 38, operative part)