(French Court of Cassation, Commercial Division, November 29th ,2011, No. 10-27.402)
The business of Internet price comparison services or “shopbots” was under the spotlight in this case between Concurrence, a company distributing electronic and computer hardware, in particular through on-line sales, and Kelkoo, a company operating a shopbot on its website kelkoo.fr, those companies being bound by a referencing contract.
Following a dispute, Concurrence claimed damages, and banning and injunction measures against Kelkoo, claiming that Kelkoo was carrying on illicit and misleading practices. According to Concurrence, Kelkoo had Internet users believe that it was selling at the best prices, and displayed adverts from its competitors that were illicit in that they contained prices that were not updated, for articles that were unavailable and for undefined periods of validity, while also preventing Concurrence from appearing on its site, unless Concurrence took part in the reported practices.
In a ruling of October 21, 2010, the Court of Appeal of Grenoble had upheld the claims of Concurrence and ordered Kelkoo, on pain of paying a coercive fine, to identify itself as an advertising website, to update the prices in real time, while indicating the periods of validity of the offers, the carriage and/or collection costs, the conditions of warranty for the products, and the main characteristics of the products or services offered. The Court of Appeal had considered that, by omitting all of that information, Kelkoo was guilty of misleading and unfair practices, in the sense of Articles L.120-1 and L.121-1 of the French Consumer Code.
The Court of Cassation quashed the appeal ruling on the grounds that: “by ruling thus, without verifying whether those omissions were susceptible of substantially adversely affecting the economic behaviour of the consumer, which was disputed by Kelkoo, the Court of Appeal had not given any legal basis for its decision.”.
Misleading commercial practices defined in Article L. 121-1 of the French Consumer Code constitute a category of unfair commercial practices in the sense of Article L. 120-1 of the same Code, that expressly provides that “a practice is unfair when it is contrary to the requirements of professional diligence and when it substantially adversely affects, or is susceptible of substantially adversely affecting the economic behaviour of a consumer who is normally informed and reasonably attentive and discriminating with regard to goods or to services.".
The fact that a commercial practice constitutes a misleading commercial practice in the sense of Article L. 121-1 of the French Consumer Code is therefore insufficient whenever it has not been established that the behaviour of the consumer has been adversely affected. It should thus be determined to what extent shopbots influence consumer behaviour.