On 18 July 2013, the Court of Justice of the European Union (“ECJ”) held that the Belgian prohibition on joint offers to consumers when at least one component of the offer is a financial service, as laid down in Article 72 of the Law of 6 April 2010 on market practices and consumer protection (Wet van 6 april 2010 betreffende marktpraktijken en consumentenbescherming/Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur - the "Law"), is compatible with (i) Article 3(9) of Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (the "Directive"); and (ii) Article 56 of the Treaty on the Functioning of the European Union ("TFEU") (ECJ, case C-265/12, Citroën Belux NV v. Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF)).
Article 3(9) of the Directive provides as follows: “In relation to ‘financial services’, as defined in Directive 2002/65/EC, and immovable property, Member States may impose requirements which are more restrictive or prescriptive than this Directive in the field which it approximates”. Article 56 TFEU concerns the freedom to provide services.
The Federatie voor Verzekerings- en Financiële Tussenpersonen (Federation of Insurance and Financial Agents - “FvF”) brought proceedings against car manufacturer Citroën for running an advertisement campaign offering potential purchasers free comprehensive car insurance valid for 6 months with the purchase of a new Citroën car. The FvF considered that this offer was an illegal joint offer as it included a financial service. On 13 April 2011, the Brussels Commercial Court sided with the FvF and found this offer to be a prohibited joint offer under Article 72 of the Law (See, VBB on Belgian Business Law, Volume 2011, No. 4, p. 14, available at www.vbb.com). Citroën subsequently lodged an appeal with the Brussels Court of Appeal (the “Court of Appeal”).
On 29 May 2012, the Court of Appeal questioned the ECJ on whether Article 3(9) of the Directive and Article 56 TFEU must be interpreted as precluding a national provision which lays down a general prohibition – save in the cases exhaustively listed – of joint offers to consumers where at least one of the components of those offers is a financial service (See, VBB on Belgian Business Law, Volume 2012, No. 11, p. 10, available at www.vbb.com).
In its judgment, the ECJ took the view that Article 3(9) of the Directive does not preclude a national provision such as Article 72 of the Law. Firstly, the ECJ underlined the fact that Article 3(9) of the Directive allows for an exception to the Directive’s objective of full harmonisation for matters relating to financial services. The ECJ then found that the term “financial services” under the Directive is defined identically as in the Law and that, consequently, joint offers of which at least one component is a financial service fall within the scope of Article 3(9) of the Directive. Thus, EU Member States are entitled to impose requirements in relation to financial services which are more restrictive than those provided for under the Directive. Secondly, the ECJ noted that the wording of Article 3(9) of the Directive did not impose any limit as regards the stringency of national rules. It also found that the more restrictive national rules should be limited to joint offers composed of a number of financial services or to joint offers of which the main component is the financial service. Based on the foregoing considerations, the ECJ stated that, because it was the intention of the EU legislature to allow EU Member States to assess the extent of the restrictiveness of the measure, the Directive does not preclude a national provision such as Article 72 of the Law.
Furthermore, the ECJ held that Article 56 TFEU does not preclude a national provision such as Article 72 of the Law. The ECJ reasoned that the Belgian measure, though it restricted the freedom to provide services within the meaning of Article 56 TFEU, is justified by overriding reasons of public interest (i.e., consumer protection). The ECJ also considered that the prohibition of joint offers involving at least one financial service was (i) appropriate, as financial services are, by nature, complex and entail risks with regard to which the consumer is not always sufficiently informed; and (ii) proportional, as the Belgian legislator had provided for exceptions to the general prohibition where consumers were not in need of additional protection.
