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The Court of Cassation refuses to consider, with regard to the sale of computers online, that the sale of a computer with pre-installed software constitutes an unfair commercial practice , since the customer has the possibility of acquiring on a website linked this bare computer, i.e. without this software.
Indeed, in this case, it is a question of sales of computers via the Internet and it turns out, notes the regulatory court, that the consumer, by going to a website dedicated to professionals, had the ability to find and to acquire “bare metal” computers.
Therefore, the distributor was not content, in reality, to sell computers with pre-installed software. Consequently, these sales, as they represent only one element among others of the distributor’s commercial offer, do not present the nature of an unfair commercial practice.
For the Court of Cassation, in order to uphold or reject, with regard to the marketing of a particular good, the qualification of an unfair commercial practice, it is therefore necessary to compare this good with the overall commercial offer of the distributor, from the moment when the consumer has easy access to it.
The CJEU may put an end to the debate we have been witnessing for several years on the question of whether the fact that a computer manufacturer sells them “turnkey”, that is to say with several pre-installed software ( including the operating system), constitutes an unfair commercial practice towards consumers.
In any case, this is what the Court of Cassation hopes, which in a judgment dated June 17, 2015 (appeal no. 14-11437) decided to ask the CJEU three questions:
– 1°) are Articles 5 and 7 of Directive 2005/29 of the European Parliament and of the Council of 11 May 2005 on unfair business-to-consumer commercial practices in the internal market to be interpreted as meaning that a joint offer consisting of the sale of a computer equipped with pre-installed software constitutes a misleading unfair commercial practice when the manufacturer of the computer has provided, through its reseller, information on each of the pre-installed software, but did not specify the cost of each of these items?
– 2°) must Article 5 of Directive 2005/29 be interpreted as meaning that a joint offer consisting of the sale of a computer equipped with pre-installed software constitutes an unfair commercial practice, when the manufacturer does not let no other choice for the consumer than to accept this software or obtain the revocation of the sale?
– 3°) must Article 5 of Directive 2005/29 be interpreted as meaning that a joint offer consisting of the sale of a computer equipped with pre-installed software constitutes an unfair commercial practice, when the consumer is unable to obtain a computer without software from the same manufacturer?
It will be remembered that case law has shown itself to be particularly fluctuating on this point in recent years.
Several decisions have invalidated the practice of selling computers with pre-installed software, considering that it is an unfair practice insofar as the customer is not informed of the possibility of buying a “naked” computer or of the value of the elements making up the offer, which would be likely to alter its behavior substantially (see in particular CA Versailles, May 5, 2011).
Other decisions have, on the contrary, underlined that such a sale cannot be unfair since it meets the expectations of a large proportion of consumers wishing to benefit from a ready-to-use computer, without having to choose and buy from among the various operating systems on the market and that the buyer buys this computer knowingly (see in particular Cass. 1ère civ., February 5, 2014, No. 12-25748).
Thus, the sale of computers with pre-installed software cannot be considered contrary to professional care and therefore is not an unfair commercial practice.
It is precisely the position adopted by the Court of Appeal of Versailles which gave rise to an appeal in cassation and to the decision presented in this article.
Insofar as the assessment of the unfair nature of a commercial practice is the subject of a Community directive whose objective is to harmonize the legislation between the Member States of the EU, one can only hope that the fact of having submitted this debate to the analysis of the CJEU will finally put an end to it.
To be continued……
Grégory Damy , Consumer Law Lawyer, Nice, 2022 update
