Combined offers have always drawn significant attention from French courts. This is all the more the case since combined offers are standard practices when selling computer equipments. Indeed, such equipments are most often sold by retailers in the form of ready-to-use packages including hardware and software, the latter comprising of operation system and other basic programs.
The legality of selling bundled software has been challenged and has given rise to a considerable amount of disputes in France over the last few years. Legal grounds invoked include: prohibition of combined offers per se (Article L. 122-1 of the French consumer code), unfair commercial practice (Article L.120-1 of the French consumer code) and misleading commercial practices (Article L.121-1 of the French consumer code).
In the past, article L. 122-1 of the French consumer code provided for a general prohibition of tied selling and was often relied upon by claimants when contesting the sale of a computer with pre-installed software. However, this general prohibition has been censored for breach of Directive of 11 May 2005 concerning unfair business-to-consumer commercial practices (the "Directive"). Indeed, combined offers are not listed among unfair practices provided in Annex I of the Directive and may thus not be prohibited per se.
In 2009, the ECJ explicity stated that combined offers may be reprehensible if they meet the conditions set out in articles 5 to 9 of the Directive, despite not being listed among as unfair commercial practices. As a result, combined offers of hardware and software will be declared illicit only if they fail to comply with the requirements of professional diligence and if they materially distort, or are likely to materially distort, the economic behaviour with regard to the product of the average consumer.
In light of this ruling, the French lawmaker rephrased Article L. 122-1 of the French consumer code that now provides that combined offers are prohibited only if they constitute an unfair commercial practice as defined by the same code.
In spite of these recent developments, French courts are still compelled to provide clarifications regarding the nature of bundled software.
In other words, in order to avoid charges of conducting unfair commercial practices, retailers will most likely be required (i) to provide consumers with information on the conditions of use of the pre-installed software and (ii) to offer them a choice to purchase different types of hardware which comes with or without pre-installed software.
Moving forward, we expect that French courts will be compelled to provide further clarifications, and take a position on the question of tied selling of smartphones and tablets with operation system and related apps.