On 23
January, the CJEU provided further clarity on what amounts to a misleading
omission in an invitation to purchase under the UCPD (Case C‑518/23).
The case concerns an online electricity tariff calculator operated by the
German company NEW Niederrhein Energie und Wasser. Based on customer input, the
calculator generates a tariff offer that the customer can accept, resulting in a
contract with NEW. However, the generated tariff appears lower than the actual
price as it fails to indicate a variable percentage increase – a ‘compensatory’
amount charged by the electricity distribution network operators for the use of
low-tariff electricity for high-tariff purposes. The legal question is whether this
missing information constitutes a ‘misleading omission’ under Art. 7(1) and
(4)(c) UCPD.
The CJEU
first confirmed that the tariff offer generated by the calculator qualifies as
an ‘invitation to purchase’ under Art. 7(4)(c) UCPD and that information about the
compensatory amount constitutes material information thereunder (‘the manner in
which the price is calculated’). Thus, this information must be included in the
invitation to purchase to enable the average consumer to make an informed
transactional decision (para 33). However, Art. 7(4)(c) UCPD does not prescribe
how price calculation methods should be communicated (para 37). More
broadly, the UCPD does not contain ‘any specific details concerning the
question of the degree to which material information must be communicated, and
by what medium this must be done’ (para 40). As such, it cannot be implied that
pricing indications must enable the consumer ‘to calculate that price himself
or herself and thus reach a final numerical result’ (para 39). Instead, such
indications can be displayed in various ways, such as a percentage range, a
conditional percentage or a fixed percentage with an indication that it may
vary over time (para 41).
Then,
referring to the general scheme of Art. 7 UCPD, the CJEU established that the
required extent of price calculation indications in the invitation to purchase
should be assessed ‘on the basis of the factual context of that invitation and
the medium of communication used’ (para 46). As to the latter, the tariff
calculator does not seem to impose limitations of space or time (Art.
7(3)UCPD). The CJEU continued to highlight a couple of factors as to the
‘factual context’, which, of course, are ultimately for the national court to
ascertain. First, since the electricity distribution network operators in
Germany retain different and fluctuating percentages for the compensatory
amount, it would require ‘disproportionate resources’ for NEW to indicate to
consumers the exact percentage in real time (para 49). Second, the generated
price offer contains a link to NEW’s general terms and conditions, which do
include information on the applicability of the compensatory amount and that it
has been set at 25% by the local network operator of the area of NEW’s
registered office (para 50). If such information is visibly displayed and consumers’
acceptance is technically conditional on their consent to the terms and
conditions, the omission of the percentage increase in the generated price
offer does not constitute a misleading omission.
In
conclusion, the UCPD does not require the inclusion of the specific
percentage of a variable price component in an invitation to purchase, as long
as it ‘indicates the applicability in principle of such a percentage, together
with a possible scale and the components having an impact on that percentage’
(para 52). There you go: while a specific percentage is off the hook, some
general indication of price variability is nonetheless required. The CJEU seems
to suggest that an indication in the company’s terms and conditions is
sufficient – thereby expecting the average consumer to read them. But why can’t
the CJEU ask for such an indication to be included in the displayed price offer
itself? Is the CJEU asking too much from the average consumer? Or do national
courts still have the discretion to exercise their faculty of judgment (see para
36)?
