Forced Bundled Selling of Computers and Software Before the Court of Justice of the European Union

On Thursday June 25, 2015, the French Court of Cassation referred a question on forced bundled selling of computers and software to the Court of Justice of the European Union, for a preliminary ruling. The court of Luxembourg will thus take a decision on this practice in the next few weeks. April looks forward to this decision, which might confirm the unfair nature of the requirement to buy software when purchasing a computer on the consumer market.

In the present case, a consumer wanted to purchase a particular model of a Sony computer, but couldn't do so without buying an operating system and several software products which had been preinstalled on the machine. He therefore went to court to obtain a refund of the amount paid for the software, but his request was rejected by the Court of Appeal.

The Court of Cassation doesn't rule on substance, but rather considers that this is a substantial legal issue which must be addressed by European jurisdictions, to ensure that Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market applies uniformly throughout the EU.

The European Court of Justice will need to answer the following questions:

(1) Should Articles 5 and 7 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market be interpreted to mean that the joint offer of selling a computer with preinstalled software is an unfair commercial practice, when the computer manufacturer has provided information on each preinstalled software product through his dealer, but has not specified the cost of each item?

(2) Should Article 5 of Directive 2005/29 be interpreted to mean that the joint offer of selling a computer with preinstalled software is an unfair commercial practice, when the computer manufacturer doesn't leave any other alternative to the consumer than to accept the software or obtain cancellation of the sale?

(3) Should Article 5 of Directive 2005/29 be interpreted to mean that the joint offer of selling a computer with preinstalled software is an unfair commercial practice, when the consumer is unable to obtain from the same manufacturer a computer which is not equipped with software?

April will closely monitor the response of the European Court of Justice, which may at last clarify the law and enforce consumer rights.