Price Display
Cases
Citroen Commerce
[2016] EUECJ C-476/14
The dispute in the main proceedings and the questions referred for a preliminary ruling
17 Citroën Commerce published, in the 30 March 2011 edition of the Nürnberger Nachrichten newspaper, an advertisement for a Citroën motor vehicle that contained the following information: ‘e.g. Citroën C4 VTI 120 exclusive [deal]: [EUR] 21 8001’ and ‘Maximum saving [EUR] 6 1701’. The superscript ‘1’ referred to the following information placed at the foot of the advertisement: ‘Price plus transfer costs of [EUR] 790. Offer open to private individuals for all Citroën C 4 … ordered by 10 April 2011 …’. The total price, including the costs of transferring the vehicle from the manufacturer to the dealer (Überführungskosten), which the customer had to pay in order to acquire such a vehicle, was not indicated in that advertisement.
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24 In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings before it and to refer the following questions to the Court for a preliminary ruling:
‘(1) Does an advertisement for a product which indicates the price to be paid for it constitute an offer within the meaning of Article 1 of Directive 98/6?
If the first question is to be answered in the affirmative:
(2) In the case of an offer within the meaning of Article 1 of Directive 98/6, must the selling price to be indicated in accordance with Article 1 and the first sentence of Article 3(1) also include costs necessarily incurred in connection with the transfer of a motor vehicle from the manufacturer to the dealer?
If the first or the second question is to be answered in the negative:
(3) In the case of an invitation to purchase within the meaning of Article 2(i) of Directive 2005/29, must the “price inclusive of taxes” to be indicated in accordance with the provision governing the first situation contemplated in Article 7(4)(c) of Directive 2005/29 also include, in the case of a motor vehicle, costs necessarily incurred in connection with the transfer of the vehicle from the manufacturer to the dealer?’
The questions referred for a preliminary ruling
25 By its questions, which it is appropriate to consider together, the referring court asks the Court, in essence, whether Article 1 and Article 3(1) of Directive 98/6 and Article 7(4)(c) of Directive 2005/29 must be interpreted as meaning that costs in connection with the transfer of a motor vehicle from the manufacturer to the dealer, which are payable by the consumer, must be included in the selling price of that vehicle indicated in an advertisement made by the trader.
26 As a preliminary point, it should be noted that, under Article 1 of Directive 98/6, the purpose of that directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices.
27 In that regard, as stated in recital 12 to Directive 98/6, the purpose of that directive is to ensure homogenous and transparent information that will benefit all consumers in the context of the internal market.
28 In order to ensure homogenous and transparent information on prices, Article 3(1) of that directive requires the selling price to be indicated for all products offered by traders to consumers, the selling price being defined, under Article 2(a) of the directive, as the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes.
29 The applicability of Directive 98/6 with regard to certain aspects of advertising mentioning the selling price of products is made clear in Article 3(4) of that directive.
30 In that regard, it should be noted that, if that provision lays down no general obligation to mention the selling price, an advertisement, such as that at issue in the main proceedings, mentioning both the characteristics of the product on offer and a price appearing, to a reasonably well-informed and reasonably observant and circumspect consumer, to be the selling price of that product, in addition to a date until which the ‘offer’ made to private individuals remains valid, is nevertheless liable to be regarded by such a consumer as the trader’s offer to sell the product on the conditions mentioned in that advertisement. In such a case, the price so indicated must satisfy the requirements of Directive 98/6.
31 In particular, that price must be the selling price of the relevant product, namely, its final price, within the meaning of Article 2(a) of Directive 98/6. The final price enables consumers to evaluate and compare the price of products indicated in an advertisement with the price of other similar products and thereby to make an informed choice on the basis of simple comparisons, in accordance with recital 6 to that directive.
32 It is for the referring court to ascertain whether all the conditions referred to in paragraph 30 above are satisfied.
33 It is true that in its judgment of 10 July 2014 in Commission v Belgium (C-421/12, EU:C:2014:2064, paragraph 59), the Court observed that the purpose of Directive 98/6 is to protect consumers not in relation to the indication of prices, in general or with regard to the economic reality of announcements of price reductions, but specifically in relation to the indication of the prices of products by reference to different units of quantity.
34 However, the Court made such an observation only in response to the submission of the Kingdom of Belgium seeking to show that Belgian legislation according to which price reduction announcements must meet certain temporal requirements falls within the scope of Directive 98/6.
35 Such an issue is manifestly different from that of the present case, which concerns the determination of the information that must be included in the indication of the selling price within the meaning of Article 2(a) of Directive 98/6.
36 As regards that information, it should be noted that, in addition to the fact that it must include VAT and all other taxes, the selling price must, as a general rule, constitute the final price for a unit of the product or a given quantity of the product.
37 As a final price, the selling price must necessarily include the unavoidable and foreseeable components of the price, components that are necessarily payable by the consumer and constitute the pecuniary consideration for the acquisition of the product concerned (see, by analogy, judgment of 18 September 2014 in Vueling Airlines, C-487/12, EU:C:2014:2232, paragraph 36).
38 In consequence, when the trader selling the product requires the consumer to pay the costs of transferring that product from the manufacturer to that trader-vendor, as a result of which those costs, which are moreover invariable, are necessarily payable by the consumer, such costs form a component of the selling price within the meaning of Article 2(a) Directive 98/6.
39 That is, in particular, the case when the consumer goes to the trader’s business premises in order to take possession of a motor vehicle purchased from that trader and manufactured at another site. In such a situation, the costs of transferring that vehicle from the manufacturer to the trader-vendor are ordinarily payable by the consumer.
40 Those transfer costs that the consumer has to pay must be distinguished from the additional cost of transferring or delivering the goods purchased at the place chosen by the consumer, for that additional charge cannot be regarded as an unavoidable and foreseeable component of the price.
41 Therefore, when the situation referred to in paragraph 30 above has come about, the price of a product offered for sale by a trader to consumers must, in the advertising of that product, include the costs of transferring that product from the manufacturer to that trader if it is the consumer who must pay them.
42 As regards the applicability of Directive 2005/29, it should be noted that, under Article 3(4) of that directive, in the case of conflict between the provisions of the directive and the other rules of EU law regulating specific aspects of unfair commercial practices, the latter are to prevail and apply to those specific aspects.
43 It is true that Directive 2005/29 applies, in accordance with Article 3(1) of that directive, to unfair business-to-consumer commercial practices, as defined in Article 5 of the directive, before, during and after a commercial transaction in relation to a product. Article 2(d) of the directive defines commercial practices as being ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (see judgment of 16 July 2015 in Abcur, C-544/13 and C-545/13, EU:C:2015:481, paragraph 73).
44 However, it should be noted that Directive 98/6 governs specific aspects, within the meaning of Article 3(4) of Directive 2005/29, of unfair commercial practices that can be characterised as unfair in dealings between businesses and consumers, namely, in particular, those that relate to the indication, in offers for sale and in advertising, of the products’ selling price.
45 In those circumstances, in so far as the aspect relating to the selling price referred to in an advertisement such as that at issue in the main proceedings is governed by Directive 98/6, Directive 2005/29 cannot apply as regards that aspect.
46 Therefore, Article 7(4)(c) of Directive 2005/29 need not be interpreted.
47 Having regard to all the foregoing considerations, the answer to the questions is that Article 3 of Directive 98/6, read in conjunction with Article 1 and Article 2(a) of that directive, must be interpreted as meaning that costs in connection with the transfer of a motor vehicle from the manufacturer to the dealer, which are payable by the consumer, must be included in the selling price of that vehicle indicated in an advertisement made by the trader when, having regard to all the features of that advertisement, in the eyes of the consumer it sets out an offer concerning that vehicle. It is for the referring court to determine whether all those conditions are satisfied.
Costs
48 Since these proceedings are, for 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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
Article 3 of Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers, read in conjunction with Article 1 and Article 2(a) of that directive, must be interpreted as meaning that costs in connection with the transfer of a motor vehicle from the manufacturer to the dealer, which are payable by the consumer, must be included in the selling price of that vehicle indicated in an advertisement made by the trader when, having regard to all the features of that advertisement, in the eyes of the consumer it sets out an offer concerning that vehicle. It is for the referring court to determine whether all those conditions are satisfied.