A commercial practice is known as "misleading" within the meaning of Art. 6 Abs. 1 Directive 2005/29/EC of the European Parliament and of the Council of 11. More 2005 Unfair business practices by companies to consumers 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 (EG) No.. 2006/2004 of the European Parliament and of the Council (Directive on unfair commercial practices) classified, if this practice to a misrepresentation or contains the average consumer is likely to deceive and are apt to, to cause the consumer to take a transactional decision, he would not have taken otherwise. Art. 2 BUCHST. k of this Directive is to be interpreted, that the term "business decision" covers all decisions, directly associated with the decision to purchase or not purchase a product.

JUDGMENT OF THE COURT (Sixth Chamber)

19. December 2013(*)

"Preliminary ruling - Consumer protection - Unfair commercial practices of companies towards consumers - Directive 2005/29/EC - Type. 6 Abs. 1 - Concept ,misleading plot - Cumulative nature referred to in the relevant provision requirements "

In Case C-281/12

REFERENCE for a preliminary ruling under Article. 267 AEUV, eingereicht vom Council of State (Italy) by decision of 13. December 2011, referred to the Court 6. June 2012, in the process

Trento Development Ltd.,

Central Adriatic Soc. coop. arl

against

Authority for Competition and Market

adopt

THE COURT (Sixth Chamber)

under President of the Chamber A. Borg Barthet (Reporter), Judge E. Levits and Judge M. Berger,

Generalanwältin: J. Kokott,

Chancellor: A. Impellizzeri, Administrator,

regard to the written procedure and further to the hearing on 26. September 2013,

after considering the observations

- Development Ltd und der der Trent Central Adriatic Soc. coop. arl, represented by M. Pacilio, lawyer,

- The Italian Government, represented by G. Palmieri, acting as Agent, assisted by S. Varone und P. Garofoli, state attorneys,

- The Lithuanian Government, represented by D. Translations by und V. Kazlauskaitė-Švenčionienė as Agents,

- The Hungarian Government, represented by M. Fehér and K.. Szíjjártó as Agents,

- The European Commission, represented by L. Pignataro-Nolin und M. van Beek and Plenipotentiary,

because of the judgment after hearing the Advocate General, to judgment without an Opinion on the Case,

following

Judgment

1 The preliminary ruling concerns the interpretation of Article. 6 Abs. 1 Directive 2005/29/EC of the European Parliament and of the Council of 11. More 2005 Unfair business practices by companies to consumers 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 (EG) No.. 2006/2004 of the European Parliament and of the Council (Directive on unfair commercial practices) (ABl. The 149, S. 22, with correction in OJ. 2009, The 253, S. 18).

2 The reference was made in the context of a dispute between the Trento Sviluppo srl (below: Trento Development) und der Central Adriatic Soc. coop. arl (below: Central Adriatic) auf der einen und der Competition Authority and the Market (Competition- and antitrust, below: AGCM) on the other hand on one of the AGCM as "misleading" classified business practices of the two companies.

Legal framework

Unionsrecht

3 According to the seventh recital of the Directive 2005/29 this refers in particular to business practices, standing on products directly related to influencing consumers' transactional decisions in relation.

4 According to the eleventh recital of the Directive, it establishes a single general prohibition of those unfair commercial practices, affect the economic behavior of the consumer.

5 In the 13. Recital of the Directive states:

"... Set up by this Directive only, common general prohibition therefore covers unfair commercial practices, affect the economic behavior of consumers. ... The general prohibition is elaborated by rules on the two by far the most common types of business practices concretized, namely misleading and aggressive commercial practices. "

6 In the 14. Recital of the Directive states:

"It is desirable, that the concept of deceptive practices and practices, including misleading advertising, includes, the hold of it by deceiving the consumer, to make an informed and thus efficient choice. …“

7 In Art. 2 BUCHST. e of Directive 2005/29 defines the notion of "to materially distort the economic behavior of consumers" as "the application of commercial practices, the ability of the consumer, make an informed decision, appreciably impair thereby causing the consumer to take a transactional decision, he would not have taken otherwise ".

8 In Art. 2 BUCHST. k of the Directive defines the notion of "business decision" as "any decision taken by a consumer concerning, whether, how and under what terms to purchase, make payment in whole or in part,, wants to keep a product or deliver or to exercise a contractual right in relation to the product, regardless, whether the consumer decides, to act or to refrain from action ".

9 Art. 6 Abs. 1 of the Directive provides:

"A commercial practice shall be regarded as misleading, if it contains false information and is therefore untruthful or in any way, including overall presentation, self-deceptive information is factually correct to the average consumer in relation to one or more of the items listed below, or to deceive him is appropriate and or is likely to prompted him in any case to take a transactional decision, he would not have taken otherwise:

…

b) the essential characteristics of the product such as availability ...

…“

Italian law

10 Of Legislative Decree Nr. 206 concerning the Consumer Code (Legislative Decree No. 206 - Consumer Code) from 6. September 2005 (Supplemento ordinary wood Nr Us. 162 from 8. October 2005) contains a type. 21 Abs. 1 BUCHST. b, by Legislative Decree No.. 146 from 2. August 2007 was inserted, with the u. a. Directive 2005/29 was transposed into national law. This Article:

"A commercial practice shall be regarded as misleading, if it does not contain false or misleading information or if they themselves information is factually correct in some way, including overall presentation, the average consumer is deceptive in relation to one or more of the items listed below, or to deceive him is appropriate and or is likely to prompted him in any case to take a transactional decision, he would not have taken otherwise:

…

b) the essential characteristics of the product such as availability ...

…“

The main proceedings and the question referred

11 Development betreibt in Trento Trentino der Provinz (Italy) several supermarkets. These supermarkets are a supermarket chain, der COOP Italia, affiliated, of Sviluppo Trento himself belongs.

12 Centrale Adriatica provides services to companies of the COOP Italia Group, the also it belongs.

13 In March 2008 launched Centrale Adriatica at some points of sale with the sign of COOP Italia, a Special Action, under which some goods were offered at competitive prices.

14 The campaign ran from 25. March to 9. April 2008. In the advertising brochure "discounts of up to were 50 % called and many other special offers ".

15 This promotional brochure was u. a. offered a laptop at a special price.

16 At the 10. April 2008 had a consumer the AGCM out, that these commercial display in that regard is incorrect, as the product offered computer science during the period, for the special offer have been considered, im Supermarkt in Trento, to which he had gone to, had not been available.

17 As a result of this instruction directed the AGCM against Sviluppo Trento and Centrale Adriatica proceedings for unfair commercial practices within the meaning of Art. 20, 21 and 23 des Legislative Decree Nr. 206 from 6. September 2005 REFERENCE to the Consumer Code. This procedure led to the adoption of a decision of 22. January 2009, with which a fine was imposed on both companies.

18 Both raised against this action before the Tribunale per il Lazio regional amministrativo (Regional Administrative Court of Lazio), which dismissed both actions.

19 Sviluppo Trento and Centrale Adriatica appealed against the decisions of this court before the Consiglio di Stato an appeal.

20 The referring court has doubts as to the scope of the term "deceptive business practices" within the meaning of Art. 6 Abs. 1 of Directive 2005/29. The question arises in this context, whether the commercial practice in question, to be considered as misleading, the requirement in the last part of the introductory sentence of Article. 6 Abs. 1 must meet, which such practices must be suitable, to influence the business decision of the consumer. It wants to know, whether this condition to the two alternative conditions in the first part of the introductory sentence, namely, that is false or the consumers are likely to deceive, added, or whether it is yet another case of a misleading commercial practice in this condition.

21 According to the national court, there is the problem of the interpretation of Article. 6 Abs. 1 of Directive 2005/29 from the differing language versions. The Italian version (in which the phrase "e in ogni caso" is used) and the German version (in the expression "... and in each case" is used) seemed to refer to a general provision, by the mere fact, that a practice is appropriate, to influence the business decision of the consumer, sufficient for its classification as a misleading. In contrast, placed the English version (with the phrase "and in Either case") and the French version ("And the other as in a case") near, that a deceptive business practice can only be, if on the one hand one of the two alternative conditions in the first part of the introductory sentence of Article. 6 was fulfilled and secondly, the requirement, after the commercial practice shall be suitable, to influence the business decision of the consumer.

22 Under these circumstances, the Consiglio di Stato decided, stay the proceedings and refer the following question for a preliminary ruling from the Court:

Ist Art. 6 Abs. 1 of Directive 2005/29 with respect to the part, the words "in ogni caso e" are used in the Italian, as amended, to be understood in the sense, that it is sufficient for the determination of the existence of a misleading commercial practice, if one of the conditions in the first part of this paragraph is met, or it is necessary for the determination of the existence of such a business practice, that the further condition of the suitability of the business practice for deflecting the business decision of the consumer is satisfied?

The question referred

23 By its question, the referring court asks, whether a commercial practice solely as "misleading" within the meaning of Art. 6 Abs. 1 of Directive 2005/29 is classified, because this practice contains false information, or the average consumer is likely to deceive, or whether it is also necessary, that the practice is suitable, to cause the consumer to take a transactional decision, he would not have taken otherwise.

24 Not Art. 6 Abs. 1 of Directive 2005/29 applies a commercial practice is misleading, if it contains false information and is therefore untruthful or in any way, including overall presentation, the average consumer is deceptive, especially in relation to the essential characteristics of a product such as its availability or to deceive him is appropriate and or is likely to prompted him in any case to take a transactional decision, he would not have taken otherwise.

25 It should be noted, that is what is used in the Italian language version of the term "e in ogni caso", the view of the national court, the wording of a "sunset clause" introduces, according to which the mere fact, that a practice is appropriate, to affect their economic behavior of the consumer, sufficient, to this business practice be regarded as misleading, but are in the Spanish, the English and the French version of Article. 6 Abs. 1 Ausdrücke die "and in either case", "Either in and check" sowie "as in the other cases" verwendet. Thereby, that it explicitly to both cases of the misleading nature of the relevant business practice referred, interpret these three language versions out, that the business practice the consumer must also actually able to make a business decision, he would not have taken otherwise.

26 According to settled case law, the wording used in one language version of a provision of European Union law can not serve as the sole basis for the interpretation of that provision or claim be made to override the other language versions. Such an approach would be incompatible with the need for a uniform application of Union law. Divergence between the various language versions differ from each other, the provision in question according to the general scheme and purpose of the provision must be interpreted, to which it belongs (vgl. Judgments 12. November 1998, Institute of the Motor Industry, C‑149/97, Slg. 1998, I‑7053, Randnr. 16, and from 25. March 2010, Helmut Müller, C‑451/08, Slg. 2010, I‑2673, Randnr. 38).

27 As regards, first, the general scheme of type. 6 Abs. 1 of Directive 2005/29 concerns, is to determine, that misleading commercial practices within the meaning of Art. 6 this Directive, a precise category of after their kind. 5 constitute prohibited unfair business practices (vgl. to that effect from the 23. April 2009, VTB-VAB und Galatea, C-261/07 C-299/07 und, Slg. 2009, I‑2949, Randnr. 55, and from 19. September 2013, CHS Tour Services, C‑435/11, not yet published in the ECR, Randnr. 37).

28 Gemäß Art. 5 Abs. 2 this Directive, a commercial practice is unfair, if it is contrary to the requirements of professional diligence, and is in relation to the product significantly affected or capable of the economic behavior of the average consumer, to influence it significantly (Urteil VTB-VAB und Galatea, Randnr. 54, sowie CHS Tour Services, Randnr. 36).

29 Not Art. 2 BUCHST. e of Directive 2005/29 is the application of commercial practices, the ability of the consumer, make an informed decision, noticeably impaired and to induce him thus to take a transactional decision, he would not have taken otherwise, considered "materially distort the economic behavior of consumers". Consequently, a practice must, to unfair within the meaning of Article. 5 of Directive 2005/29 to be, be suitable, to cause the consumer to take a transactional decision, he would not have taken otherwise.

30 Since the misleading business practices by type. 6 of Directive 2005/29 a special category of unfair business practices by type. 5 Abs. 2 pose of this Directive, they must necessarily meet all requirements of this unfairness and, consequently, the condition of suitability of the practice to materially distort the economic behavior of the consumer, by being caused to take a transactional decision, he would not have taken otherwise.

31 Secondly, the type of. 6 Abs. 1 of Directive 2005/29 As to the objective pursued, is to determine, that this directive on type. 169 TFEU ​​is based and by the approximation of the provisions of the Member States on unfair commercial practices, adversely affect the economic interests of consumers, to ensure a high level of consumer protection. After her seventh recital, the Directive does 2005/29 on business practices, standing on products directly related to influencing consumers' transactional decisions in relation. According to the eleventh recital of the Directive, establishes a single general prohibition of those unfair commercial practices, affect the economic behavior of the consumer. From the 13. Recital of the Directive is clear, that with the two by far the most common types of business practices, namely the misleading and aggressive practices, the adoption of specific legislation has been justified to combat. After the 14. Recital of the Directive, the term "deceptive business practices" also include practices, the hold of it by deceiving the consumer, to make an informed and thus efficient choice.

32 As a result, that the Directive 2005/29 to ensure a high level of consumer protection establishes a general prohibition of those unfair commercial practices, affect the economic behavior of consumers.

33 Consequently, a business practice for classification as must be "misleading" within the meaning of Art. 6 Abs. 1 of Directive 2005/29 be particularly suitable, to cause the consumer to take a transactional decision, he would not have taken otherwise.

34 This interpretation is confirmed by the case law of the Court, moreover,. Aus Randnr. 47 of the judgment of 15. March 2012, Pereničová und Perenič (C‑453/10, not yet published in the ECR), and from paragraph. 42 the judgment CHS Tour Services is in fact established, that a commercial practice is misleading within the meaning of Article. 6 Abs. 1 of Directive 2005/29 is considered, provided that the indication is misleading and for the consumer to take a transactional decision causes, he would not have taken without this practice.

35 In order to provide the national court with all the criteria necessary to decide the case before it is available, is also the scope of the term "business decision" within the meaning of Art. 2 BUCHST. k of the Directive 2005/29 to determine. Since it comes at an advantageous price during a certain period in the business practice in the main proceedings to information on the availability of a product, is to clarify namely, whether the possible purchase of a product preparatory acts such as the way the consumer to business or entering the business as business decisions within the meaning of the Directive can be viewed.

36 According to the wording of Art. 2 BUCHST. k of the Directive 2005/29 the term "business decision" is defined widely. After a business decision is namely "any decision of a consumer concerning, whether, how and under what conditions he wants to make a purchase ". This term therefore covers not only the decision to purchase or not purchase a product, but also directly related decisions, such as in particular the entering the store.

37 Auch Art. 3 Abs. 1 this Directive in favor of this interpretation, because the policy under this provision for unfair business practices by companies to consumers before, applies during and after a commercial transaction in relation to a product.

38 Therefore, the answer to the question referred, that a practice as "misleading" within the meaning of Art. 6 Abs. 1 of Directive 2005/29 is classified, if this practice to a misrepresentation or contains the average consumer is likely to deceive and are apt to, to cause the consumer to take a transactional decision, he would not have taken otherwise. Art. 2 BUCHST. k of this Directive is to be interpreted, that the term "business decision" covers all decisions, directly associated with the decision to purchase or not purchase a product.

Costs

39 The parties to the main proceedings, a step in the action pending before the national court; the decision on costs is a matter for that court. The costs incurred by the other party for submitting observations to the Court, are not recoverable.

On those grounds, the Court (Sixth Chamber) hereby:

A commercial practice is known as "misleading" within the meaning of Art. 6 Abs. 1 Directive 2005/29/EC of the European Parliament and of the Council of 11. More 2005 Unfair business practices by companies to consumers 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 (EG) No.. 2006/2004 of the European Parliament and of the Council (Directive on unfair commercial practices) classified, if this practice to a misrepresentation or contains the average consumer is likely to deceive and are apt to, to cause the consumer to take a transactional decision, he would not have taken otherwise. Art. 2 BUCHST. k of this Directive is to be interpreted, that the term "business decision" covers all decisions, directly associated with the decision to purchase or not purchase a product.

Signatures

* Language: Italian.