OPINION OF ADVOCATE GENERAL TRSTENJAK delivered on 21 October 2008 1(1)
Joined Cases C‑261/07 and C‑299/07

VTB-VAB NV v Total Belgium NV

and

Galatea BVBA v Sanoma Magazines Belgium NV

Parliamentary questions
11 February 2008
E-5911/2007
Answer given by Ms Kuneva on behalf of the Commission

The compatibility of any exclusivity contracts between Apple iPhone and telecom operators with laws on unfair commercial practices and unfair competition laws is to be assessed by the national authorities and courts. The Commission is aware that legal proceedings are ongoing at national level. The Commission has no enforcement powers regarding these rules and cannot intervene or give legal interpretations in individual cases under Directive 2005/29/EC(1).

Whether or not there is a violation of the EU antitrust rules laid down in Articles 81 and 82 of the EC Treaty depends on a range of factual, economic and legal issues. Apple is not dominant in the market for mobile handsets. Likewise, the operators that distribute the iPhone in the UK, France and Germany are unlikely to be dominant in their respective markets for the provision of mobile telephony services to end users.

The compatibility of the current Belgian legislation prohibiting joint offers with Directive 2005/29/EC on Unfair Commercial Practices will be assessed by the European Court of Justice following recent requests for preliminary rulings (C‑261/07 VTB‑VAB v.n. v Total Belgium and C‑299/07 Galatea BVBA v Sanoma Magazines Belgium NV).

By 2011 the Commission shall submit a report on the application of Directive 2005/29/EC. The report shall be accompanied, if necessary, by a proposal to revise the directive. An impact assessment would precede any proposal.

The Commission would like to draw the Honourable Member's attention to the fact that other EU consumer protection legislation could be relevant in this context. In particular, the Unfair Contract Terms Directive(2) aims at preventing significant imbalances in the rights and obligations of consumers, on the one hand and sellers and suppliers, on the other hand. This general requirement is supplemented by a list of terms which may be regarded as unfair. Terms which are found by a national court, tribunal or administrative body to be unfair under the directive are not binding on consumers. The directive also requires contract terms to be drafted in plain and intelligible language and states that ambiguities will be interpreted in favour of consumers.

So, for instance, a contract term which has the object or effect of limiting consumer's freedom to choose a telecom operator may, in some cases, be regarded by a national court as unfair and therefore not binding on consumers.

(1) Directive 2005/29/EC of the Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the Parliament and of the Council and Regulation (EC) No 2006/2004 of the Parliament and of the Council (‘Unfair Commercial Practices Directive’), OJ L 149, 11.6.2005.
(2) Council Directive 93/13/EC of 5 April 1993 on unfair terms in consumer contracts , OJ L 95, 21.4.1993.

Some hearing seems to have happened according to a user on an Apple iPhone forum:

Old 06-26-2008, 08:45 PM

User: Samab

The Belgium anti-bundling law will be gone soon. The appeal hearing was last wednesday at the European Court of Justice —- most likely the court will rule that the Belgium law is incompatible to EC 2005 directives.

If there was an appeal hearing in June 2008, it means that a prior judgment has been made.

Here is the question forwarded by the Court of Antwerp to the ECJ (Case C-299/07):

Reference for a preliminary ruling from the Rechtbank van koophandel te Antwerpen (Belgium) lodged on 27 June
2007 — Galatea BVBA v Sanoma Magazines Belgium NV
(Case C-299/07)
(2007/C 199/36)
Language of the case: Dutch

Referring court
Rechtbank van koophandel te Antwerpen

Parties to the main proceedings
Applicant: Galatea BVBA
Defendant: Sanoma Magazines Belgium NV
Question referred

Do Article 49 of the EC Treaty concerning the freedom to provide services and Directive 2005/29/EC (1) of the European Parliament and of the Council concerning unfair commercial practices preclude national legislation, such as Article 54 of the Belgian Law of 14 July 1991 on trade practices and consumer information and protection, which — except in the cases listed exhaustively in that law — prohibits any linked offer by a vendor to a consumer whereby the acquisition, whether or not free of charge, of products, services, advantages or vouchers with which they can be obtained is linked to the acquisition of other, even identical, products or services, and this regardless of the circumstances of the case, and especially regardless of the influence which the specific offer may have on the average consumer and regardless of whether that offer can be considered in the specific circumstances to be contrary to professional diligence or fair commercial practices?

(1) 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 and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).

Here is the question forwarded by the Court of Antwerp to the ECJ (Case C-261/07):

Reference for a preliminary ruling from the Rechtbank van
Koophandel te Antwerpen (Belgium) lodged on 1 June
2007 — VTB-VAB NV v Total Belgium NV
(Case C-261/07)
(2007/C 199/28)
Language of the case: Dutch
Referring court
Rechtbank van Koophandel te Antwerpen
Parties to the main proceedings
Applicant: VTB-VAB NV
Defendant: Total Belgium NV

Question referred

Does Directive 2005/29 (1) of the European Parliament and of the Council concerning unfair commercial practices preclude a national provision such as Article 54 of the Belgian Law of 14 July 1991 on commercial practices, consumer information and consumer protection, which, subject to the exhaustive list of exceptions contained within that Law, prohibits any collateral offer by a seller to a consumer, including an offer in which goods which the consumer has to buy are tied to a free service, the acquisition of which is linked to the purchase of the goods, notwithstanding the circumstances of individual cases, in particular notwithstanding the possible influence of the actual offer on the average consumer, or whether, in the actual circumstances, that offer may be regarded as contravening the professional duty of care and genuine commercial custom?

(1) 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 and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).