1. 

A new request for a preliminary ruling provides the Court of Justice with an opportunity to develop its case-law on consumer protection, this time within the context of Directive 2005/29/EC, ( 2 ) the application of which formed the subject matter of the recently delivered judgment in Wind Tre and Vodafone Italia. ( 3 )

2. 

In line with the case-law established in that judgment, it is now necessary to determine whether the model for concluding distance contracts applied in Poland by a telecommunications undertaking, whereby the consumer is required to make the final decision on a transaction in the presence of the courier delivering the standard-form contract, of whose content the consumer has previously had an opportunity to take cognisance either online or by telephone, constitutes an aggressive commercial practice (in any event or only in certain circumstances).

3.

Under recitals 7, 16 and 17 of Directive 2005/29:

…

4.

Article 2 of that directive contains the following definitions:

‘…

…

…’

5.

Article 5 thereof (‘Prohibition of unfair commercial practices’) provides:

‘1.   Unfair commercial practices shall be prohibited.

2.   A commercial practice shall be unfair if:

3.   Commercial practices which are likely to materially distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way in which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group. This is without prejudice to the common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally.

4.   In particular, commercial practices shall be unfair which:

5.   Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair. The same single list shall apply in all Member States and may only be modified by revision of this Directive.’

6.

Article 8 of Directive 2005/29 (‘Aggressive commercial practices’) provides:

‘A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.’

7.

Article 9 of that directive (‘Use of harassment, coercion and undue influence’) states:

‘In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue influence, account shall be taken of:

8.

In accordance with Article 8(1) of the Ustawa z dnia 23 sierpnia 2007 r. o przeciwdziałaniu nieuczciwym praktykom rynkowym (Law of 23 August 2007 on combating unfair market practices), a commercial practice is deemed to be aggressive if, by reason of impermissible influence, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a contractual decision that he would not have taken otherwise.

9.

In accordance with Article 8(2) of that law, undue influence means any form of exploitation of a position of power over a consumer, in particular the use or threat of physical or emotional violence in a way which significantly limits the average consumer’s ability to make an informed decision regarding a contract.

10.

According to the order for reference, Orange Polska concludes telecommunications services contracts with consumers via an online shop or by telephone (teleshopping), in accordance with a procedure the steps of which are:

11.

By decision of 30 December 2010, the Urząd Ochrony Konkurencji i Konsumentów (Polish Office of Competition and Consumer Protection) declared that the practice described above is prejudicial to the collective interests of consumers, inasmuch as it limits their autonomy by requiring them to decide whether to sign the contract in the courier’s presence and depriving them of the freedom to acquaint themselves with its contents.

12.

On 27 October 2014 that administrative decision was annulled by the Sąd Okregowy w Warszawie (District Court, Warsaw, Poland). By judgment of 4 March 2017, the Sąd Apelacyjny w Warszawie (Appeal Court, Warsaw, Poland) confirmed the judgment of the court of first instance.

13.

The Prezes Urzędu Ochrony Konkurencji i Konsumentów (Chairman of the Office of Competition and Consumer Protection) brought an appeal on a point of law against the judgment on appeal before the Sąd Najwyższy (Supreme Court, Poland), which has decided to make a reference for a preliminary ruling.

14.

The referring court states that it ‘is inclined to share the view of both lower courts’ but has interpretative doubts regarding the classification of the conduct at issue in the dispute.

15.

In its opinion, there is no aggressive commercial practice if the trader has not exerted any pressure on the consumer but simply hopes that the latter will make a final decision about a contract which he provisionally agreed to conclude when he gave his consent at the stage of placing the order, after he had accessed the documents containing the conditions governing the provision of the telecommunications services in question.

16.

In the view of the referring court,

17.

Lastly, the referring court states that, account being taken of the conditions laid down in Article 9 of Directive 2005/29, and in the absence of any physical or verbal threats, the visit by the courier at a time and place agreed with the consumer does not constitute a practice which can be classified as aggressive per se.

18.

On those grounds, the Sąd Najwyższy (Supreme Court) has referred the following question, lodged on 8 November 2017, to the Court of Justice for a preliminary ruling:

‘Is Article 8, in conjunction with Articles 9 and 2(j), of Directive 2005/29 … to be interpreted as meaning that the use of standard forms for the conclusion of distance contracts relating to the provision of telecommunications services, under which a consumer is required to make the final business decision in the presence of the courier handing over the standard-form contract (general terms and conditions), an aggressive commercial practice by a trader owing to undue influence:

19.

Written observations have been lodged by Orange Polska, the Polish Government and the [European] Commission, all of which attended the hearing held on 28 November 2018.

20.

Orange Polska submits that a system for the conclusion of distance contracts whereby the consumer makes his decision on the basis of the documents made available to him online and the contract is concluded at the time of the courier’s arrival cannot be classified as an aggressive commercial practice. In its view, ‘undue influence’ must be understood as being a deliberate influence which a seller or supplier exerts over a consumer in such a way as to induce him, by illegal or contradictory methods, to make commercial decisions which he would not make otherwise.

21.

The Polish Government, in common with the Commission, takes the view that, in the light of the wording of the list included in Annex I to Directive 2005/29, the conduct at issue is not such as to constitute an unfair (aggressive) commercial practice in all circumstances. Instead, it is necessary to take into account the particular circumstances of each case, considered as a whole, the assessment of which falls to the national court.

22.

The Polish Government and the Commission argue that it is for the Court of Justice to provide the referring court with criteria for interpretation that take into account Article 2(j) and Articles 8 and 9 of Directive 2005/29. In accordance with those provisions, the expression ‘undue influence’ used in that directive should not be confined to ‘impermissible influence’, which is the ‘unfortunate’ expression used in the Polish version.

23.

The Polish Government considers that the decisive factor is whether, before the courier’s visit, the consumer was able to access the contract documents on a fully free and informed basis. The option to withdraw at a later stage has no bearing on the existence of an aggressive commercial practice.

24.

The Commission recognises that the need to sign a contract in the presence of a courier may entail a degree of pressure on the consumer. However, that possibility is not sufficient to support the conclusion that this process always constitutes an aggressive commercial practice, since the existence of such a practice is dependent on the presence of factors capable of unduly influencing the consumer’s decision.

25.

Factors of this kind would be those mentioned by the referring court in paragraphs (b) and (c) of the question it has referred for a preliminary ruling, although none of these would, per se, support a finding as to the presence of an aggressive commercial practice, which would be subject to an examination of the potential impact of the practice in question on the consumer’s decision.

26.

In the Commission’s view, online selling and telephone selling call for separate analyses to determine who the average consumer is in each case and to ascertain whether any undue influence has been exerted. Lastly, it must be considered whether the mere decision to request a courier visit for the purposes of signing a contract is capable of constituting a ‘commercial decision’ within the meaning of Directive 2005/29.

27.

The referring court asks, in essence, whether the commercial practice which it describes in its order may be classified as aggressive because it exerts ‘undue influence’ within the meaning of Article 8 of Directive 2005/29, read in conjunction with Article 9 and Article 2(j) thereof.

28.

In particular, the referring court wishes to ascertain whether that system for the conclusion of distance contracts constitutes an aggressive commercial practice (a) in any event or (b) only where one of the following two circumstances is present:

29.

The issue raised is as I have just described it, if account is taken of the literal wording of the question. I add this caveat because the language versions of the question are not consistent, in particular in their translation of paragraph (a) thereof.

30.

The Spanish version of that paragraph states: ‘siempre, si el consumidor durante la visita del mensajero no puede tomar conocimiento con libertad del contenido del contrato tipo’. ( 5 ) In the same vein, the Italian version says: ‘sempre, qualora il consumatore, al momento della visita del corriere, non possa consultare liberamente il contenuto dei modelli contrattuali’. ( 6 ) The German version reads: ‘immer, wenn der Verbraucher beim Besuch des Kuriers den Inhalt der Vertragsmuster nicht ungehindert zur Kenntnis nehmen kann’. ( 7 ) The Portuguese version has: ‘sempre que o consumidor não possa, por ocasião da visita do mensageiro, tomar livremente conhecimento do conteúdo do modelo do contrato’. ( 8 )

31.

On the basis of those language versions, there would be no question as to whether the contract conclusion model at issue constitutes an aggressive commercial practice in any event, that is to say ‘always’ and automatically, or only ‘where’ a particular circumstance is present, that is to say where the consumer cannot freely take cognisance of the content of the contract. As in paragraphs (b) and (c) of the question referred, the referring court would be raising the issue in relation to a specific circumstance.

32.

The French version of the question referred, however, states: ‘toujours, parce que, durant la visite du livreur, le consommateur ne peut pas prendre connaissance librement du contenu des modèles [de contrat] qui lui sont remis’. ( 9 ) This translation appears to be the most faithful to the Polish original, in which paragraph (a) of the question begins ‘zawsze, gdyż’ (‘always, because’). Paragraphs (b) and (c), on the other hand, start with the words ‘tylko, gdy’ (‘only when’). The orthographical proximity between the words ‘gdyż’ and ‘gdy’ prompts the Commission to conclude that the use of the former is an erratum, because the term ‘gdy’ applies to all three cases. ( 10 )

33.

In my opinion, this cannot be regarded as an erratum. First and foremost, of course, because it is reasonable to presume that the referring court drafted its question with precision and care. In particular, however, because, on the two occasions on which it uses the word ‘gdy’ (paragraphs (b) and (c)), it does so after the word ‘tylko’ (only), while ‘gdyż’ is preceded in paragraph (a) by the word ‘zawsze’ (always). If this were an erratum and the appropriate word in paragraph (a) were also ‘gdy’ (when), the referring court would be asking whether the model at issue constitutes an aggressive commercial practice whenever a given circumstance is present, which would be the same as saying in that event alone. The question then would be why the referring court does not also use ‘tylko’ (only) in paragraph (a), as it does in paragraphs (b) and (c).

34.

Without any need to resort to the presence of the alleged erratum, the circumstance described in paragraph (a) makes complete sense as standing in contrast to the situations mentioned in the remaining two paragraphs. While the latter refer to very precise and specific situations (the consumer has not previously and individually received all the standard-form contracts; there are indications of unfair actions), paragraph (a) mentions a factor which, in the context of the reference for a preliminary ruling, would be inherent in the practice described, that is to say, the requirement that the contract be signed in the presence of the courier, the effect of which, given the urgency characteristic of the activity of couriers, is almost by definition to render the consumer ‘unable freely to take cognisance of the content of the standard-form contract’. This is not, therefore, a circumstance which may or may not exist but a state of being which is inherently attendant upon the situation described and the expression of which can for that reason be justifiably said to be an explanation of why the contract conclusion model at issue might always (‘zawsze’) be an aggressive commercial practice. This is reflected, rightly in my view, in the French version of the question referred, which I shall address now.

35.

Recital 7 of Directive 2005/29 specifically states that, in the application of the latter, ‘full account should be taken of the context of the individual case concerned’. In the same vein, and in accordance with Article 8 of that directive, in order for a commercial practice to be classified as aggressive, it is essential to examine it in such a way as to ‘take … account of all its features and circumstances’.

36.

As is argued by the Polish Government ( 11 ) and the Commission, ( 12 ) the Court of Justice must confine itself to providing the referring court with guidelines on the interpretation and application of Directive 2005/29 which, without replacing the referring court’s own findings, will assist the latter in its task, which cannot be delegated, of classifying the contract conclusion model at issue. As I have already said, that classification falls exclusively to the referring court. ( 13 )

37.

On that premiss, I shall analyse the various issues raised by the question referred.

38.

It is not difficult to discharge the duty of restraint incumbent on the Court of Justice in this case when it comes to commenting on paragraph (a) of the question referred.

39.

After all, the question raised in that paragraph is confined to ascertaining whether the contract conclusion model used by Orange Polska, as described by the referring court, can ‘always’, that is to say ‘in all circumstances’, be regarded as an aggressive commercial practice.

40.

Under Article 5(4) of Directive 2005/29, an ‘aggressive commercial practice’ is an ‘unfair commercial practice’ if — and only if — it exhibits the characteristics set out in Articles 8 and 9 of that same directive.

41.

To take the view that the contract conclusion model used by Orange Polska ‘always’ entails an ‘aggressive commercial practice’ would be to regard that model as being an ‘unfair commercial practice’ in all circumstances (always). However, the only commercial practices that warrant the status of being unfair in any event are those set out in Annex I to Directive 2005/29, according to Article 5(5) thereof.

42.

Since the 31 practices on the so-called ‘blacklist’ in Annex I do not include the one at issue in the main proceedings, if the Court of Justice were to conclude that the practice employed by Orange Polska is always an aggressive commercial practice, and consequently an unfair commercial practice, it would be doing the work of the legislature, contrary to the spirit and purpose of Directive 2005/29. ( 14 ) I therefore take the view that this paragraph of the question referred should be answered in the negative.

43.

The forms of conduct mentioned by the referring court in paragraphs (b) and (c) of its question, on the other hand, could give rise to ‘an aggressive commercial practice by reason of undue influence’ if, account being taken of the ‘context of the individual case concerned’ as a whole, the influence in question were considered to be undue.

44.

Article 8 of Directive 2005/29 defines as ‘aggressive’ a commercial practice which, account being taken of all the features and factual circumstances of the case, uses certain techniques to arrive at a particular outcome:

45.

In the context of Directive 2005/29, ‘undue influence’ is not, in my view, ‘impermissible influence’ but influence which, without prejudice to its lawfulness, actively entails, through the application of pressure, the forced conditioning of the consumer’s will. ( 16 )

46.

In accordance with Article 2(j) of Directive 2005/29, undue influence consists in the use of a position of power in relation to the consumer so as to ‘apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision’.

47.

As I recalled in the Opinion in Wind Tre and Vodafone Italia, ( 17 ) a distinction must be drawn between two aspects of the position of power:

48.

The ‘aggressive commercial practice’ is, of course, the first of those two, that is to say, the one whereby the trader, taking advantage of the weaker position which the consumer occupies in relation to itself, ( 18 ) and availing itself of a position of power which it has acquired illegitimately — by harassment, coercion, physical force or proactive influence — impairs the consumer’s freedom by prompting him to conclude a contract to which he would not consent were it not for the existence of that unlawful advantage.

49.

It is precisely because the conclusion of a contract entails the assumption of certain obligations which one party may legitimately enforce in law against the other that Directive 2005/29 protects the consumer’s freedom to enter into contracts on a fully informed basis by committing himself only to obligations which, in the exercise of that freedom, he is prepared to assume. That directive therefore affords protection not against legal obligations already freely entered into by the consumer, but against the assumption of such obligations as a consequence of an unfair commercial practice, whether or not that practice is, incidentally, a lawful practice.

50.

There are many variables which, in accordance with Article 9 of Directive 2005/29, have to be taken into account in order to assess whether a commercial practice relies, so far as is relevant here, on undue influence. Of these, it is important to mention, as part of a non-exhaustive list, the timing, location, nature or persistence of the practice, the language used, the behaviour adopted, the exploitation of any misfortune or the imposition of onerous or disproportionate non-contractual barriers.

51.

In the view of the referring court, there are three factors in this case which might mean that the seller or supplier exercises ‘undue influence’ over the purchaser:

52.

Depending on the extent to which each of those factors manifests itself, it is not inconceivable that they may give rise to undue influence per se. Thus:

53.

It is also possible that an examination of each of those factors in isolation will show that none of them is present to such an extent as to exert an undue influence per se, although, as a whole, they achieve that very result through their interaction with each other.

54.

It is for the national court, as I have already said, to assess on a case-by-case basis the actual impact which circumstances such as those described in the order for reference may have either individually or as a whole. In the order for reference, as I noted when summarising it, ( 19 ) the Sąd Najwyższy (Supreme Court) seems to incline to the absence of any aggressive practice, thus corroborating the views of the courts of first instance and appeal.

55.

For my part, I would emphasise the difficulty for the Court of Justice of giving an answer which is at variance with the unanimous assessment (in this instance, the two lower courts and the court of cassation itself are of one voice) formed by the national courts in cases such as this, in which the weight of the features specific to the individual behaviours at issue is clear. So far as concerns the factual aspects of such behaviours, the [national] courts exercise exclusive jurisdiction and are, of course, better placed than the Court of Justice to gauge to what extent any aspect of the trader’s behaviour has a notable impact on the attitude of the average consumer.

56.

Nonetheless, for the purposes of lending the referring court some assistance in its task of interpreting Directive 2005/29 and applying it to this particular case, the considerations I shall set out below may be relevant.

57.

A distinction must be drawn between the case of online selling and that of telephone selling, given that, because of their respective characteristics, the position of the consumer takes on a distinct profile in each.

58.

What is more, those two scenarios are each likely to present a different profile for the ‘average consumer’, that is to say, someone who is reasonably well informed and reasonably observant and circumspect, account being taken of social, cultural and linguistic factors, ( 22 ) the context and the combination of circumstances in which the relationship between the seller or supplier and consumers takes place:

59.

Another relevant factor is the quality of the information provided to the consumer. As the Court of Justice recalled in Wind Tre and Vodafone Italia, the concept of an aggressive commercial practice is essentially defined ‘by the fact that it impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product[,] [from which it] follows that for a service to be solicited the consumer must have made a free choice[,] [which] supposes, in particular, that the information provided by the trader to the consumer is clear and adequate’. ( 23 )

60.

The Court of Justice has emphasised the fact that it is of fundamental importance for the consumer, ‘before concluding a contract, [to have information] on the terms of the contract and the consequences of concluding it’. It is on the basis, primarily, of that information that the consumer ‘decides whether he wishes to be bound by the terms previously drawn up by the seller or supplier’. ( 24 )

61.

In the situation at issue here, one of the scenarios mooted by the referring court is that the consumer ‘[may not have] previously and individually received all standard forms (for example, at his email address or home address), even if he himself had the opportunity, prior to the courier’s visit, to take cognisance of their content on the trader’s website’. ( 25 )

62.

We must, therefore, start from the premiss that the information posted online about the content of the standard-form contracts at issue is adequate and accurate and that the consumer can access it without too much difficulty. In the case of telephone selling, the referring court states ( 26 ) that the consumer can ask the operator for as much information as he considers necessary. In my view, however, it is difficult to imagine that the quality of the information provided during a telephone conversation will be comparable to that of the information obtained through online research.

63.

The question, therefore, is, in particular, whether the consumer must have all the standard-form contracts offered by the seller or supplier at his home address or at his email address beforehand, and whether, if he does not, this constitutes an aggressive commercial practice.

64.

In my opinion, the consumer must be presented with the various standard-form contracts available, ( 27 ) so that he may familiarise himself with them, but there is no need for the seller or supplier to have had them delivered to the consumer in person prior to the courier’s visit.

65.

Since the referring court’s interest is focused on the precise moment when the consumer must make the final decision — that is to say, when the courier delivers to him the standard-form contract for which he opted during a telephone conversation or a visit to the seller’s or supplier’s webpage — that court will have to ascertain whether the fact that, at that moment, the consumer does not have all the standard-form contracts with him may mean that he is being forced to make a decision which he would not have made otherwise. ( 28 )

66.

This may be the case, for example, if the consumer has doubts as to whether the contract which is being presented to him for signature is the same as that which he was able to view online or which was described to him over the phone and yet the courier either cannot dispel those doubts or refuses to give him the opportunity to check the contract and presses him to sign it.

67.

At the hearing, it became apparent that, for this work, Orange Polska uses ordinary courier services, that is to say, therefore, couriers who are unfamiliar with the telephony sector and unable to provide any information on contracts between consumers and telephony companies.

68.

Whether the courier can dispel the consumer’s doubts or not, the decisive factor will always be his attitude in the context of the situation in which the consumer finds himself as a result of the information available to him at the time when the contract is presented to him for signature.

69.

If that information is inadequate or ambiguous, this may give rise to a misleading commercial practice, that is to say a practice, as defined in Article 7(1) of Directive 2005/29, which, ‘in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, … omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise’.

70.

However, such misleading information will contribute towards an ‘aggressive commercial practice’ only if it enables the seller or supplier, or a third party acting on his behalf (in this case, the courier), to avail himself successfully of a position of strength which he has acquired through misleading actions or omissions and which he exercises unlawfully.

71.

For the purposes of ensuring that the courier’s attitude does not have the potential to manifest itself in the exercise of undue influence, what matters is not so much the information provided to the consumer in the course of the previous steps of the purchasing procedure ( 29 ) as the need to ensure that the courier’s conduct is duly regulated in such a way as to eliminate or minimise the element of psychological pressure that may, in some circumstances, arise from the invitation to sign a contract.

72.

Accordingly, if the courier in question is linked to the telephony undertaking, he should be able to help resolve any last-minute doubts that might be worrying the consumer, for example by providing the model standard-form contracts himself onsite or offering to make a further visit once the consumer has examined those contracts. It should also be ensured that under no circumstances will the courier press the consumer to sign by advising him that any refusal to sign or delay in doing so on his part might trigger some form of liability or cause any future contractual terms to be less advantageous.

73.

If, on the other hand, as is the case here, the couriers in question have no connection with the telephony undertaking and are therefore unable to provide the consumer with information of any kind or to make any commitments on the company’s behalf, it should at the very least be ensured that the courier does not insist on the need for the consumer to sign the contract.

74.

These are some of the factors which, in my opinion, should be taken into account in the assessment of the working relationship established between the seller or supplier and the courier undertaking acting on his behalf. It falls to the national court to weigh up those factors in order to determine whether the courier’s actions may, in the context in which the contract is signed, entail the exercise of undue influence (Article 8 of Directive 2005/29).

75.

In the light of the foregoing, I propose that the Court should answer the question referred by the Sąd Najwyższy (Supreme Court, Poland) as follows:

‘Article 8 of 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, read in conjunction with Article 9 and Article 2(j) thereof, must be interpreted as meaning that: