Combined sale of a computer equipped with pre-installed software gets all clear

On 7 September 2016 the Court of Justice of the EU decided in Vincent Deroo-Blanquart v Sony Europe Limited (C-310/15) that the so-called combined offers are in line with the requirements of ‘professional diligence’ under the condition that the manufacturer informed the buyer in advance of the existence of the pre-installed software and that the buyer was free to choose another model or another brand.
 

Facts of the case:

MrDeroo-Blanquart acquired a Sony Laptop in France equipped with pre-installed Windows software. When using that computer for the first time, Deroo refused to subscribe to the operating system’s end-user licence agreement. Instead Deroo requested reimbursement for the part of the computer’s purchase price representing the cost of the pre-installed software as he did not want to use (and therefore pay) for this software.

Sony refused to reimburse Deroo for the software alone. It submitted that the computer and pre-installed software formed part of a single and non-separable offer and instead offered Deroo a full refund. Deroo declined the offer and sought payment for the software specifically (€450) and damages for unfair commercial practice of €2,500.

The French “Cour de Cassation” Court – which heard the case on appeal – asked for a preliminary reference from the Court of Justice regarding the interpretation of the 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.

The first issue was whether the combined sale of a computer with pre-installed software, where the consumer is unable to obtain a computer which is not equipped with software from the computer manufacturer constitutes an unfair commercial practice under the Directive.

The second issue was 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 constitutes a misleading commercial practice under the Directive.
 

Judgement of the Court of Justice:

The Court of Justice found in response to the first question that the sale of the computer equipped with pre-installed software did not constitute itself an unfair commercial practice. The Court of Justice noted that a commercial practice is unfair when it is contrary to the requirements of professional diligence and when it materially distorts the economic behaviour of a reasonably well-informed consumer. This circumstantial assessment of fairness was to be determined by the national court.

On the second issue the court found that a failure to indicate information of costs of specific components was not a misleading commercial practice.

The judgement may have great importance on the marketplace given the popularity of ‘bundled’ sales. It confirms the prevailing view that the combined offers are legal provided that some conditions are observed.