DECISION OF THE EURUPEAN COURT OF JUSTICE: THE SALE OF COMPUTERS WITH PRE-INSTALLED SOFTWARE DOES NOT OF ITSELF CONSTITUTE AN UNFAIR COMMERCIAL PRACTICE
The CJEU, with judgment C-310/15 filed on 7 September 2016, has decided that the sale of a pc that comes with a pre-installed operative system does not contravene the norms on professional ethics and, especially, does not distort the economic behavior of consumers. Additionally, the Court held that omitting the price of each of the pre-installed programs does not amount to an unfair commercial practice.
With the above mentioned judgment the Court put an end to a sequence of events that started in France in 2008, when a consumer purchased a Sony computer that came with a Windows Vista operating system: upon using the software for the first time, the purchaser refused to enter into the software license agreement, requesting that Sony refund the price of the pre-installed program. Sony rejected the request of the client, and instead proposed to annul the complete purchase and refund the entire price. The dispute reached the French Supreme Court, which decided to remand the issue to the EU judges, in order to obtain clarifications concerning directive 2005/29 on unfair commercial practices of corporations in their relations with consumers of the internal market.
The European judges held that the sale of a computer having pre-installed computer programs does not, of itself, amount to an unfair commercial practice, considering that an offer of this type does not contravene the norms on professional diligence and does not distort the economic behavior of consumers. In the case at hand, the Court observed that “as noted by the connected market survey, the sale by Sony of computers having pre-installed computer programs meets the expectations of the vast majority of consumers, who prefer the purchase of a computer having such software pre-installed and immediately utilizable as opposed to purchasing separately the computer and the programs”. The judges of the Court of Justice stated that, in any case, it is the duty of the national judge to evaluate whether the consumer has been properly informed, before the purchase, of the fact that a given model of computer is sold with pre-installed programs. In the case under scrutiny, Sony had conformed to the norms on professional diligence, having provided the consumer with the option of receding from the sale.
As concerns the second question, the Court held that the omission of the prices of the pre-installed programs does not prevent the consumer from making an informed commercial decision nor does it provoke him or her to make a commercial decision that he or she would not have taken otherwise. Indeed, considering that the price of these programs does constitute relevant information which the vendor is obliged to give to the purchaser, the failure to indicate the price of each of the pre-installed computer programs cannot be considered an unfair commercial practice.