decisions occurred on November 15 last. I use the plural because it is not one but two judgments that the First Civil Chamber of the Supreme Court made this day about the application of French regulations on sales related to the case of marketing computer with software pre-installed (such as the Windows operating system).
The subject of the legal treatment of this issue is not new since the dispute began in the early years 2000. The challenge rests on the application of a section of the Consumer Code, Article L. 122-1 prohibiting sales called "contingent", ie in the jargon of Internet "Michu" tied selling.
The Consumer Code provides:
"It is forbidden to refuse to sell a consumer product or providing a service, without good reason, and make the sale of a product the purchase of a prescribed quantity or the concomitant purchase of another product or another service and to make the provision of a service that another service or purchase a product. "
The application of this provision was the subject of several positions. The decision by the Ministry of Consumer Affairs in a 2005 ministerial response , but also many decisions mainly on local court .
Often
interpretation - divergent - Trial Courts came to an exception mentioned by the Court regarding the sale conditional on: the interests of consumers. Thus, "where commercial practice interest to the consumer " The sale is no longer qualified for conditional sale. And so the debate focused on whether a consumer is interested - at least practical - to have sold a computer with software including an operating system.
On this issue, two cases came before the Court of Cassation.
The first involved the acquisition December 6, 2007 for a Lenovo branded computer equipped with various software. In the absence of any possibility of obtaining reimbursement software, the consumer society then assigned to the local court of Tarascon. The trial judge refused to grant the request because " the parties' agreement was reached on a type of computer complete and ready for use and that the consumer had completed the acquisition, the ability to be reimbursed for the goods in their entirety . "Thus, the magistrate refused on the basis of Article L .122-1 sanction the practice of tying.
But the Supreme Court does not hear the same ear and breaks the Trial Judgement. Indeed, it acknowledges all the upheaval that is undergoing a Part of the French legislation protecting the consumer.
Indeed, French law knows several consumer protection provisions that have the effect of penalizing purely and simply a particular business practice. This is the case of tying, but also selling at a premium or pay operating lotteries. Community law is not the same sense that French law and the automatic condemnation of a practice is rare.
Therefore, in many disputes, the Court of Justice of the European Union recently - one might say - put a slap on some principles of French law because of an incompatibility of the latter with the Directive 2005/29/EC of 11 May 2005 , Commercial Practices Unfair business-to-consumer in the market. Indeed, once a "commercial practice" is involved, the analysis of the legal framework applicable to these business practices must be analyzed under the provisions of the directive and not French law.
Article 2 of the Directive defines, using a particularly wide, the notion of "commercial practice " as "any act, omission, course of conduct or business communication, including advertising and marketing, of a trader, directly connected with the promotion, sale or supply of a product to consumers . The ECJ
had the opportunity to recall and November 9, 2010 (C-540/08, § 21) that " Directive is characterized by a particular field of application extending to a practice that has a direct connection with the promotion, sale or providing a product to consumers. It does so excluded that scope, as is clear from the sixth recital to the directive, the national laws on unfair trade practices that undermine "only" economic interests competitors or concerning a transaction between traders .
Especially, § 30 the decision of the ECJ goes on to note that " the Directive to full harmonization of rules on unfair commercial practices of business-to-consumer, Member States may not adopt, as provided expressly Article 4 of the latter, more restrictive than those set by the Directive, even in order to ensure a higher degree of consumer protection .
Innuendo, national legislation bans that create "pure and simple" not set in the Directive ... fall. And so the practice previously convicted must be analyzed under the principles laid down in the Directive and in particular whether the practice in question " impairs or is likely to materially distort the economic behavior with regard to the product of the average consumer it reaches or it addresses, or the average member of the group when a commercial practice is directed toward a particular group of consumers .
On tying, the Supreme Court takes up this analysis and believes that the Directive " precludes national legislation which, with certain exceptions and regardless of the specific circumstances of the case, prohibits joint bid made by a seller to a consumer, so that Article L. 122-1 of the Consumer Code, which prohibits such joint bids without considering specific circumstances must be applied in accordance with the criteria set by Directive . In short: the judge should not look for the existence of tying, but must find the existence of an unfair trade practice.
By offering for sale a computer with preinstalled software, is that the trader has made a practice that is likely to alter substantial economic behavior the consumer? The question is still open at this stage, but clearly demonstrate that such an alteration will be difficult. Indeed, it would then show incorrect information, misleading from the professional (eg, explaining that the software is "available" or that the software is strictly necessary) to demonstrate the likely existence of such a business practice unfair.
The second concerned the acquisition June 6, 2006 of a PC in a store Darty. Faced with the refusal to pay for software, the consumer had before the local court of Paris I, who did not accede to his request. But Here, the Court of Cassation quashed the decision on the grounds that the trial court failed to ascertain whether there was or not tying.
And actually, I feel a sudden a little confusion in the reader's mind. Why in this case, the Court of Cassation asked the local court to inquire whether we could apply Article L.122-1 of the Code of consumption, whereas it had earlier said otherwise? Simply because it was made " before the deadline for transposing the EC Directive No. 2005/29 of the European Parliament and the Council of 11 May 2005 .
Clearly, if the deadline for transposition of the Directive was not expired, then the text was not directly applicable to litigation. And so, the French text on the tying retained its full effects.
Good, and at this moment that the legal effects (some would say vicious) starts scratching. The second decision of the Court of Cassation said to disputes arising before the expiry of the deadline, the French legal system of the bundling continues to apply. For disputes arising after that date, we must apply the principles of the Directive on unfair commercial practices.
What is that date?
Article 19 of Directive said: " States shall adopt and publish not later than 12 June 2007 the laws, regulations and administrative provisions necessary to comply with this Directive .
Accordingly, the Directive until 12 June 2007 gave the states to come into compliance.
But a second development - remains rare in Community law - was scheduled in the same article 19, planning to read: "These provisions later than December 12, 2007 . Clearly, according to the directive, the new regime was to take unfair commercial practices in force in the various Member States at least as of December 12, 2007.
One may say, so what?
Well, that's where it loops back to the first case the Supreme Court because the product was purchased 6 December 2007 or, after the transposition deadline, but before the date of coming into force.
From my side, I do not know if the parties and the judges of the Supreme Court focused on this point. But it still seems a bit surprising that the Court has applied a community text - not yet transposed into French law - before the date on which the Community text was secured its entry into force .
Maybe this will be raised before the trial judge who will have to retry the case Lenovo. And maybe when the trial court will apply French law still on the ground at nearly six days, Community law was not intended to apply.
A real issue of Community law with a small mix of information technology law and consumer law. A prime topic of discussion ;-)
Source: Cass. Civ.1, November 15, 2010, No. 09-11161 and Cass. Civ.1, November 15, 2010, No. 08-20227
Author: Benoit Tabaka - http://tabaka.blogspot.com 
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