Is a laptop with pre-installed software a fair deal?

Mr Deroo-Blanquart acquired a Sony laptop in France which was equipped with pre-installed software including Windows Vista Home Premium operating system and various other software applications. When using that computer for the first time, Mr Deroo-Blanquart refused to subscribe to the operating system’s ‘end-user licence agreement’ (EULA), displayed on that computer’s screen, and requested, on 30 December 2008, reimbursement from Sony of the part of the purchase price of the computer corresponding to the cost of the pre-installed software.

By letter of 8 January 2009, Sony refused to process that reimbursement, submitting that the VAIO computers with pre-installed software form part of a single and non-separable offer. Following discussions, Sony offered, on 15 April 2009, to cancel the sale and to reimburse Mr Deroo-Blanquart the entirety of the sale price, namely EUR 549, subject to the return of the equipment purchased. Mr Deroo-Blanquart declined that offer and, by a document lodged on 17 February 2011, issued proceedings against Sony before the tribunal d’instance d’Asnières (District Court, Asnières, France) for payment, inter alia, of EUR 450 as a lump sum for the pre-installed software, and of EUR 2 500 for the damage suffered as a result of unfair commercial practices.

By judgment of 13 September 2012, the tribunal d’instance d’Asnières (District Court, Asnières) dismissed all of Mr Deroo-Blanquart’s claims. Mr Deroo-Blanquart appealed against that judgment before the Cour d’Appel de Versailles (Court of Appeal, Versailles, France). By judgment of 5 November 2013, the Cour d’Appel de Versailles (Court of Appeal, Versailles) upheld the judgment under appeal, holding that the sale at issue did not constitute the unfair commercial practice of coercive selling, which is not permitted under any circumstances, an unfair commercial tying practice, or a misleading or aggressive commercial practice. Mr Deroo-Blanquart brought an appeal against the judgment of the Cour d’Appel de Versailles (Court of Appeal, Versailles) before the Cour de cassation (Court of Cassation, France).

After noting that the applicable provisions of national law fall within the scope of Directive 2005/29, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1) Must Articles 5 and 7 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2006 concerning unfair business-to-consumer commercial practices in the internal market be interpreted as meaning that a combined offer consisting of the sale of a computer equipped with pre-installed software constitutes a misleading unfair commercial practice where the manufacturer of the computer has, via its retailer, provided information on each item of pre-installed software, but has not specified the cost of each individual component?

(2) Must Article 5 of Directive 2005/29 be interpreted as meaning that a combined offer consisting of the sale of a computer equipped with pre-installed software constitutes an unfair commercial practice where the manufacturer leaves the consumer no choice other than to accept the software or cancel the sale?

(3) Must Article 5 of Directive 2005/29 be interpreted as meaning that a combined offer consisting of the sale of a computer equipped with pre-installed software constitutes an unfair commercial practice where the consumer is unable to obtain a computer which is not equipped with software from the computer manufacturer?

Consideration of the questions referred for a preliminary ruling

Combined offers, which are based on the linking together of at least two different offers of products or services into a single offer, constitute commercial acts which clearly form part of an operator’s commercial strategy and relate directly to the promotion thereof and its sales development. The question is whether a trader who, in circumstances such as those at issue, offers for sale only computers equipped with pre-installed software contravenes the requirements of professional diligence, which is defined under Article 2(h) of Directive 2005/29 as the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader’s field of activity.

In the present case, it is clear from the order for reference that, inter alia, the sale by Sony of computers with pre-installed software meets the expectations, as revealed by an analysis of the market concerned, of a significant proportion of consumers who prefer to purchase a computer already equipped and ready for immediate use, rather than to purchase a computer and software separately. Moreover, as is also apparent from the order for reference, prior to the purchase of the computer at issue in the main proceedings, Mr Deroo-Blanquart, as a consumer, was duly informed via Sony’s retailer of the existence of pre-installed software on that computer and the specific nature of each of those items of software. Finally, subsequent to the purchase, when using that computer for the first time, Sony offered Mr Deroo-Blanquart the possibility of either subscribing to the ‘end-user licence agreement’ in order to be able to use that software or cancelling the sale.

The price of a product offered for sale, that is to say the overall price of the product, and not the price of each individual component, is considered to be material information. It follows that the trader is obliged to indicate to the consumer the overall price of the product concerned. In the present case, as is apparent from the order for reference, the overall price of the whole package, consisting of a computer equipped with pre-installed software, was communicated to Mr Deroo-Blanquart.

With regard to the context of a combined offer consisting of the sale of a computer equipped with pre-installed software, failure to indicate the price of each of those items of software is not such as to prevent the consumer from taking an informed transactional decision or likely to cause the average consumer to make a transactional decision that he would not have taken otherwise. Thus, the price of each of those items of software does not constitute material information within the meaning of Article 7(4) of Directive 2005/29.

On those grounds, the Court (Eighth Chamber) has ruled:

1. 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 does not in itself constitute an unfair commercial practice, unless such a practice 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, a matter which is for the national court to determine by taking account of the specific circumstances of the case in the main proceedings.

2. 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 of those items of pre-installed software does not constitute a misleading commercial practice.