(Cass., Com. 29 novembre 2011, pourvoi n° 10-27.402)

In this decision, the Commercial Chamber provides useful details regarding acts constituting misleading commercial practices.

This case involved the company Kelkoo, which on its website operated a price comparison feature allowing Internet users to search for goods and services in the databases of websites having concluded listing agreements with it. Under the agreements, Kelkoo was paid based on the number of "clicks" registered on the hypertext links of such websites.  The company Concurrence, which had asked that its listing on Kelkoo's website be suspended, claimed that Kelkoo's practices were illegal and misleading since it did not present itself as an advertising website, making Internet users believe that it sold goods at the lowest prices and that it displayed illegal advertisements insofar as these displayed non-updated prices, unavailable items and undefined offer validity periods.

The Grenoble Court of Appeal ruled in favor of Concurrence, finding that Kelkoo had practices which had to be characterized as misleading within the meaning of Article L. 121-1 of the Consumers' Code, and which also constituted unfair commercial practices within the meaning of Article L. 120-1 of the same code.

The French Supreme Court reversed this decision, finding that, "[i]n so ruling, without verifying whether such omissions were likely to substantially distort consumers' economic behavior, which the company disputed, the Court of Appeal has not provided a legal basis for its decision with respect to Articles L. 120-1 and L. 121-1 of the Consumers' Code".

The French Supreme Court stated that Article L. 121-1 of the Consumers' Code, although not including at the time the notion of distortion of consumers' behavior, must be read in the light of Directive 2005/29/EC of May 11th, 2005, concerning unfair business-to-consumer commercial practices in the internal market, now transposed in Article 120-1 of the Consumers' Code.  This directive makes the characterization of misleading or unfair commercial practices subject to the condition that such these: "materially distorts or be likely to materially distort the economic behavior with regard to the product, of the average consumer whom it reaches or to whom it is addressed".

The Court of Appeal which will now have to rule on the case will therefore have to determine whether the possibility for a consumer to know the term of validity of an offer, the possible existence of shipping fees, etc., when clicking on a link redirecting him to the offering party's website, constitutes adequate information.