The ECJ provided a preliminary ruling on Nemzeti Fogyasztovedelmi Hatosag v UPC Magyarorszag, which could have major implications on commercial practices. In this case, the ECJ decided that the communication of erroneous information from business to consumer will be classified as a misleading commercial practice within the meaning of the Unfair Commercial Practices Directive (2008/29) (the ‘Directive’), even when the information concerns only a single consumer.

The case itself involves a breach of the Directive which deals with unfair business-to-consumer commercial practices in the internal market to see whether a misleading commercial practice had occurred on the facts. Here, a subscriber of cable TV services in Hungary wished to cancel his contract before starting another with a different provider, but because of incorrect information received, ended up paying for both subscriptions for a short period of time.  The Hungarian Supreme Court asked the ECJ to determine whether or not a misleading commercial practice had occurred.

In reaching its preliminary decision, the ECJ set out a number of factors:

  1. The term ‘commercial practice’ has a very broad meaning and includes after-sales services;
  2. A communication that contains incorrect information may be misleading;
  3. It is immaterial that the misleading event only occurred once and only affected one consumer;
  4. The unintentional nature of the conduct is also irrelevant, as it is enough that the information provided, negatively impacted the consumer’s decision; and
  5. It is also irrelevant that the consumer was able to ascertain the correct information for himself since the consumer is deemed to be in the weaker position.

The ECJ based its decision on the need for the result to be in line with the ethos of the Directive, rather than by considering its exact wording – a move demonstrating the ECJ’s determination to protect the consumer. Organisations should therefore be aware that even a small unintentional error could lead to a successful claim under the Directive, and employees should be made aware of this.