The sale of computers with pre-installed software is not an unfair commercial practice

The Court of Justice of the European Union has ruled on the issue of the sale of computers with pre-installed software, thereby validating the interpretation of French case law from 2014 which called to order judges inclined to treat the sale of computers pre-equipped with software too liberally as unfair commercial practices. (1re civ., 5 févr. 2014, n° 12-25.748, Sté Lenevo France c/ Stéphane X. JurisData no. 2014-001611)

The case was referred to the CJEU by the Court of Cassation following a ruling by the Versailles Court of Appeal on 5 November 2013, which held that the sale of a Sony laptop equipped with Microsoft's Vista operating system and some application software did not constitute either an unfair commercial practice of forced selling prohibited in all circumstances, or a commercial practice of tied selling, or a misleading or aggressive commercial practice.

In a judgment of 7 September 2016, the CJEU thus held that such a commercial practice was not unfair unless:

• it was contrary to the requirements of professional diligence, which was not the case here because
  

  "correct information for the consumer, the conformity of the joint offer with the expectations of a significant proportion of consumers and the possibility offered to the consumer to accept all the elements of this offer or to obtain the revocation of the sale, are likely to meet the requirements of honest market practices or of the general principle of good faith in the field of the production of computer equipment intended for the general public, the professional thus showing care towards a consumer.

• it substantially altered or was liable to alter the economic behaviour of the average consumer in relation to that product, which was not the case in this instance as the consumer was duly informed that the computer was not sold without the pre-installed software and that he remained free to choose another model.

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