Provisional text
OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 25 April 2024 (1)
Case C‑646/22
Compass Banca SpA
v
Autorità Garante della Concorrenza e del Mercato,
joined parties:
Metlife Europe Dac,
Metlife Europe Insurance Dac,
Europ Assistance Italia SpA
(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))
(Reference for a preliminary ruling – Consumer protection – Directive 2005/29/EC – Article 2(d)(e) and (j), and Articles 5, 6, 8 and 9 – Unfair business-to-consumer practices – Prohibition – Concept of ‘aggressive commercial practice’ – Cross-selling of loan products and unrelated insurance products – Absence of any lapse of time between the signing of the two contracts – Case by case assessment of the ‘aggressive’ character of the practice – Notion of ‘average consumer’ – Meaning of ‘reasonably well-informed and reasonably observant and circumspect’ – Directive (EU) 2016/97 – Article 24 – Decision of the administrative authority to impose a seven-day period between the signing of the two contracts – Absence of any conflict with that provision)
I. Introduction
1. ‘In pure liberal logic, people are free, equal, and old enough to get along without the State getting involved … The law, however, takes into account reality, and the fact that, in reality, parties [to a loan contract] are not as free and equal as in liberal theory.’ (2)
2. Many of the texts adopted by the EU legislature in the field of consumer protection arise from the same simple observation: there is usually no equality of arms between the parties to a consumer contract, particularly those in a debtor-creditor relationship. That is why a ‘high degree’ of protection of consumers is required.
3. Directive 2005/29/EC, (3) whose purpose is to protect consumers from the consequences of ‘unfair’ commercial practices which are ‘directly related to influencing [their] transactional decisions in relation to products’, (4) is no exception to that general principle. Indeed, it aims to provide ‘a high common level of consumer protection’, (5) by prohibiting such ‘unfair’ commercial practices, in particular where they are ‘misleading’ or ‘aggressive’. (6)
4. The dispute in the main proceedings concerns a commercial practice adopted by Compass Banca SpA (‘Compass Banca’), the appellant in those proceedings. That practice consists in selling an insurance policy to customers who are already in the process of contracting a personal loan with that company. The Autorità Garante della Concorrenza e del Mercato (Competition and Market Authority, Italy; ‘the AGCM’), the respondent in the main proceedings, is of the view that customers are essentially ‘made to take out’ the insurance policy. In that regard, it indicates that the loan product and the insurance policy are offered concurrently and the contracts for those respective products are signed simultaneously by the customers. Furthermore, the insurance policy provides coverage for personal events, which, although they are unrelated to the loan contract itself, could (if they were to materialise) affect the ability of the customers to repay their loan – an eventuality that would influence their decision to purchase the insurance policy.
5. The present case provides the Court with the opportunity to clarify the conditions in which such a commercial practice of cross-selling can be regarded as ‘aggressive’ and, therefore, ‘unfair’, within the meaning of Directive 2005/29. It also invites the Court to provide some broader reflections on the concept of ‘average consumer’, which Member States and their courts or competent authorities are required, under that instrument, to use as a benchmark.
II. Legal framework
A. European Union law
6. Article 2 of Directive 2005/29, entitled ‘Definitions’, provides:
‘For the purposes of this Directive:
…
(e) “to materially distort the economic behaviour of consumers” means using a commercial practice to appreciably impair the consumer’s ability to make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise;
…
(j) “undue influence” means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision;
…’
7. Article 5 of that directive, which is entitled ‘Prohibition of unfair commercial practices’, reads:
‘1. Unfair commercial practices shall be prohibited.
2. A commercial practice shall be unfair if:
(a) it is contrary to the requirements of professional diligence,
and
(b) it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.
…’
8. Article 8 of Directive 2005/29, which is entitled ‘Aggressive commercial practices’, provides:
‘A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.’
9. Article 9 of that directive, which is entitled ‘Use of harassment, coercion and undue influence’, reads as follows:
‘In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue influence, account shall be taken of:
(a) its timing, location, nature or persistence;
(b) the use of threatening or abusive language or behaviour;
(c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgment, of which the trader is aware, to influence the consumer’s decision with regard to the product;
…’
B. National law
10. Article 20 of the Decreto legislativo del 6 settembre 2005, n. 206, Codice del consumo (Legislative Decree No 206 of 6 September 2005; ‘the Consumer Code’) is entitled ‘Prohibition of unfair commercial practices’. It provides:
‘A commercial practice shall be unfair if it is contrary to the requirements of professional diligence and it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed at a particular group of consumers.’
11. Article 24 of that legislative decree concerns ‘Aggressive commercial practices’ and transposes the requirements contained in Article 8 of Directive 2005/29.
III. Facts, national proceedings and the questions referred
12. Between January 2015 and July 2018, Compass Banca offered to sell to its customers, in addition to various types of personal loans, insurance policies that provided coverage for certain personal events that were unrelated to the loan. Taking out an insurance policy was not a precondition for granting the loan, but it was offered in conjunction with that product. Furthermore, the contracts for the two products were signed simultaneously.
13. On 13 September 2018, the AGCM opened an investigation with a view to determining whether that commercial practice was ‘unfair’, within the meaning of Directive 2005/29.
14. During the investigation, to avoid the imposition of a fine, Compass Banca accepted some of the measures proposed by the AGCM. Those measures included the extension, to all customers, of an unconditional right to cancel their insurance policy contract (without affecting their loan contract), resulting in the termination of the insurance policy and the reimbursement of unused insurance premiums.
15. At the same time, Compass Banca rejected the AGCM’s request to separate the signing of the two contracts by an interval of seven days. Indeed, it considered that measure disproportionate. However, it did propose to contact its customers seven days after they had signed their insurance policy contract to confirm that they still wished to keep the insurance policy, adding that Compass Banca would cover the cost of the insurance premium for the period corresponding to those seven days.
16. The AGCM deemed those commitments insufficient. By decision of 2 April 2019, it indicated that Compass Banca had implemented an ‘aggressive’ and, therefore, ‘unfair’ commercial practice, within the meaning of Directive 2005/29, consisting in the ‘obligatory combination of personal finance agreements and insurance products not related to the credit, for which that financial institution acts as intermediary’. It prohibited the continuation of that practice and fined Compass Banca EUR 4 700 000.
17. Compass Banca brought an action before the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy), challenging the AGCM’s decision. That court dismissed the action.
18. Thereafter, Compass Banca brought an appeal before the Consiglio di Stato (Council of State, Italy), the referring court.
19. Compass Banca argues that the AGCM has considered its commercial practice to be ‘aggressive’ and, therefore, ‘unfair’, within the meaning of Directive 2005/29, on the mere ground that it consists in the cross-selling of personal loans and insurance policies, without furnishing actual evidence of that ‘aggressive’ character, in the light of the specific features of that practice or relevant circumstances.
20. Compass Banca adds that, because of the AGCM’s approach, the burden of proof is on it to demonstrate that its commercial practice is actually not ‘aggressive’. Such a reversal of the burden of proof is, according to Compass Banca, unjustified and unacceptable.
21. The AGCM argues that, by cross-selling personal loans and insurance policies, Compass Banca has significantly influenced and limited the freedom of choice of its customers in relation to its insurance products. It finds that Compass Banca has failed, in particular, to provide information to its clients about the optional nature of the insurance policy. According to the AGCM, the practice adopted by Compass Banca would not have been ‘aggressive’ had the date of the signing of the two contracts been separated by an interval of seven days.
22. The referring court notes that Directive 2005/29 requires that the ‘average consumer’ be used as a benchmark when evaluating the potentially ‘unfair’ character of a commercial practice.
23. In that regard, it wonders whether that concept gives sufficient weight to theories which show the need for greater consumer protection, in particular the theory of ‘bounded rationality’. Pursuant to that theory, people often act without obtaining all the necessary information, take irrational decisions (compared with those that would be taken by a hypothetically ‘reasonably well-informed, observant and circumspect’ person) and change their preferences according to the different ways in which the material information or the alternatives to a given course of action or product are presented to them by the trader (7) (‘the framing effect’).
24. In the light of those elements, it points out that, although the personal events covered by the insurance policy sold by Compass Banca (for example, health issues) are unrelated to the personal loan which that company also sells, the combined offers for those two products are ‘framed’ by Compass Banca in such a way that consumers could end up believing that it is not possible to enter into the loan contract without also taking out an insurance policy. It wonders whether that practice must, as a result, be regarded as an ‘aggressive’ and, therefore, ‘unfair’ commercial practice, within the meaning of Directive 2005/29.
25. Finally, it wonders whether the fact that the commercial practice adopted by Compass Banca consists in the cross-selling of an insurance product (the insurance policy) with another product (the personal loan) has any implications on the solving of the dispute in the main proceedings. In that regard, it notes that Article 24(7) of Directive (EU) 2016/97 (8) (which concerns, specifically, the ‘distribution’ of insurance products) contains rules on the cross-selling of insurance products with other products. It wonders whether that provision precludes the AGCM from prohibiting Compass Banca’s commercial practice in application of Directive 2005/29.
26. In those circumstances the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Should the concept of “average consumer” referred to in [Directive 2005/29], understood as a consumer who is reasonably well informed and reasonably observant and circumspect – given that it is vague and flexible – be worded according to the best science and experience and thus refer not only to the classic concept of homo economicus, but also to the findings of the … [theory of] bounded rationality, which ha[s] shown how people often act by limiting the information they need through decisions which appear “irrational” when compared with those that would be taken by a hypothetically observant and circumspect person; findings that impose a need for greater consumer protection where – as is increasingly the case in modern market dynamics – there is a risk of cognitive influence?
(2) Can a commercial practice in which, due to the framing of the information, a choice may appear obligatory and with no alternatives be considered inherently aggressive, taking account of Article 6(1) of [that directive], which regards as misleading a commercial practice that, in any way “including overall presentation” deceives or is likely to deceive the average consumer?
(3) Does [Directive 2005/29] justify the power of [the AGCM] (once the risk of psychological influence has been identified in relation to (i) the fact that a loan applicant is normally in need; (ii) the complexity of the contracts presented for signature by the consumer; (iii) the concurrent nature of the combined offer; and (iv) the short period granted to take up the offer) to allow a derogation from the principle of the possibility of cross-selling insurance products and unrelated financial products by requiring a seven-day period between the signing of the two contracts?
(4) Does Directive 2016/97, and in particular Article 24(3) thereof, preclude [the AGCM] from adopting a decision on the basis of Article 2(d) and (j) of Directive 2005/29, Articles 4, 8 and 9 thereof and the national implementing legislation, … following the refusal of an investment services company, in the case of the cross-selling of a financial product and an unrelated insurance product (and where there is a risk of the consumer being influenced owing to the actual circumstances of the case, which can also be inferred from the complexity of the documents to be examined), to grant the consumer a seven-day cooling-off period between the combined offer being made and the insurance contract being signed?
(5) Could the characterisation of the mere combining of two products – one financial product and one insurance product – as an aggressive practice result in an unlawful regulatory measure, and would this place on the trader (rather than on the AGCM, as it should be) the burden – a difficult one to discharge – of demonstrating that that combining of two products is not an aggressive practice in breach of [Directive 2005/29] (especially as, under that directive, Member States may not adopt stricter rules than those provided for therein, even in order to achieve a higher level of consumer protection), or, on the contrary, does such a reversal of the burden of proof not exist, provided that, on the basis of objective evidence, there is deemed to be a real risk that the consumer in need of a loan will be influenced by a complex combined offer?’
27. The request for a preliminary ruling, dated 10 October 2022, was registered on 13 October 2022. Compass Banca, Europe Assistance Italia SpA (‘Europe Assistance Italia’), the Italian Government and the European Commission submitted written observations. No hearing was held.
IV. Analysis
28. The five questions of the referring court all relate to the interpretation of Directive 2005/29, which, as I have explained in the introduction above, prohibits ‘unfair’ commercial practices. As Article 5(2) of that instrument indicates, a commercial practice is ‘unfair’ if it is ‘contrary to the requirements of professional diligence’ (first requirement) and ‘materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed’ (second requirement). (9)
29. It follows from that definition and from recital 18 of that directive that the ‘unfair’ character of a commercial practice must be assessed by using as a benchmark the ‘average consumer’ who is ‘reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors’. (10)
30. Against that background, the first question of the referring court concerns the interpretation of the concept of ‘average consumer’ (A). The remaining four questions have at their heart the question whether a practice of cross-selling such as that put in place by Compass Banca is ‘aggressive’ and, therefore, ‘unfair’, within the meaning of Directive 2005/29, and which measures can be ordered by the competent national authority in such a situation. I will deal with the second (B) and fifth questions (C), before providing an answer to the third (D) and fourth questions (E).
A. The concept of ‘average consumer’ (Question 1)
31. By the first question, the referring court wonders, in essence, whether the concept of ‘average consumer’, which Directive 2005/29 requires national courts and authorities to use as a benchmark when they assess the ‘unfair’ character of a commercial practice in application of that directive, must be understood by reference to the ‘classic concept’ of ‘homo economicus’ alone, or whether other theories which show the need for greater consumer protection, in particular the theory of ‘bounded rationality’, can also be taken into account.
32. To decipher the precise meaning of that question, I shall begin by explaining what that court means by the ‘classic concept’ of ‘homo economicus’ and the theory of ‘bounded rationality’.
33. The term of ‘homo economicus’ has never been employed by the Court. Nor does it appear anywhere in Directive 2005/29. The phrase was coined by neoclassical economists (11) who posited the existence of a consumer who behaves rationally, with a view to maximising his or her ‘profit’ (12) or ‘personal utility’. (13) According to the ‘homo economicus’ model, the ‘average consumer’ is a rational actor who is confident and proactive in gathering and processing information before making transactional decisions (14) and who has complete oversight of the consequences of his or her choices.
34. By contrast, the theory of ‘bounded rationality’ posits that, in general, people are limited in their capacity to assimilate complex information, and that they do not always engage with all of the information provided or available to them. That theory was introduced by behavioural economists who debunked the myth that consumers make the best choices for themselves, even when they are presented with all the relevant information. (15)
35. In the light of those elements, I understand that the first question is rooted in the argument, made by some authors, (16) that, within the context of the application of Directive 2005/29, the concept of ‘average consumer’ refers to a rational individual who is proactive in obtaining all the relevant information, who rationally processes the information that is provided to him or her and who is, thus, able to make informed decisions (in line with the ‘homo economicus’ model). That interpretation is derived from the fact that recital 18 of Directive 2005/29 indicates that the ‘average consumer’ must be regarded as ‘reasonably well-informed and reasonably observant and circumspect’.
36. I also understand that, by that question, the referring court actually wishes to know the extent to which the manner in which information is presented (or ‘framed’) by Compass Banca to its customers plays a role in the assessment of whether that company’s commercial practice is ‘unfair’, within the meaning of that directive. If the ‘average consumer’ is a rational individual who is proactive in obtaining all the relevant information and rationally processes the information that is provided to him or her (much like a ‘homo economicus’), the manner in which information is presented to him or her by the trader will not be capable of ‘materially distorting’ his or her economic behaviour as much as it would if he or she were an individual with ‘bounded rationality’ who acted without obtaining all the relevant information or were unable to process the information provided to him or her rationally.
37. Those preliminary remarks enable me to reject the claim made by Compass Banca that the first question is inadmissible because it is hypothetical. In that regard, I recall that questions referred by the national courts for a preliminary ruling benefit from a presumption of relevance, which may be rebutted only in exceptional cases, including where the problem is hypothetical and the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted. (17) It is clear to me, in the light of the explanation which I have just provided and given that the perspective of the ‘average consumer’ is the one which the Consiglio di Stato (Council of State) must adopt to determine whether Compass Banca’s commercial practice is ‘aggressive’ and, therefore, ‘unfair’, within the meaning of Directive 2005/29, that the problem presented to the Court in the first question is not hypothetical and is, in fact, directly relevant to the solving of the dispute in the main proceedings.
38. Having made those clarifications, I shall explain why I share the view, outlined by the Italian Government and the Commission, that the ‘average consumer’, within the context of the application of Directive 2005/29, is not necessarily an individual who corresponds to the ‘homo economicus’ model. The concept is flexible enough for him or her to be perceived, in some situations, as an individual with ‘bounded rationality’ who acts without obtaining all the relevant information or is unable to process the information provided to him or her rationally. There are several reasons why I have come to that conclusion.
39. First, recital 18 of that directive expressly states that the concept of ‘average consumer’ depends on the evolution of the case-law of the Court and that ‘the average consumer test is not a statistical test’. Furthermore, national courts and authorities must take into account ‘social, cultural and linguistic factors’ when they define who the ‘average consumer’ is, in relation to a given commercial practice. That recital also indicates that those courts and authorities must exercise ‘their own faculty of [judgment]’ to determine how the ‘average consumer’ will react when confronted with such a practice.
40. It follows from those elements that the concept of ‘average consumer’, within the context of the application of Directive 2005/29, is envisaged as a flexible concept, which is to be adapted in the light of the relevant circumstances. The determination of who the ‘average consumer’ is, in relation to a given commercial practice, is not supposed to be a merely theoretical exercise. Considerations that are more realistic must also be taken into account. Those may be related, for example, to the complexity of the field, the knowledge to be expected of the ‘average consumer’ in relation to a particular product and the likelihood of him or her being subject to a cognitive bias. As such, it seems to me that, whereas, in some situations, the ‘average consumer’ may be considered as able to act rationally and make an informed decision, in other situations (for example, where the product is one which the ‘average consumer’ tends to buy compulsively or while under emotional stress), he or she may be regarded as unable to do so.
41. Second, that recital indicates that the ‘average consumer’ is the ‘typical consumer’. Moreover, national courts and authorities must, in their assessment of the ‘unfair’ character of a commercial practice, determine ‘the typical reaction of the average consumer in a given case’. I understand from those terms that those courts and authorities are not required to determine what the economic behaviour of a rational consumer who is proactive in obtaining the relevant information, who rationally processes the information presented to him or her and who is, thus, able to make informed decisions (a ‘homo economicus’) would be. They are merely required to consider the ‘typical reaction’ of a ‘typical consumer’. That interpretation is also the one endorsed by the Commission in its Guidance on the interpretation of Directive 2005/29, in which it states that the ‘test is based on the principle of proportionality’ and that ‘the average consumer under [that directive] is in any event not somebody who needs only a low level of protection because they are always in a position to acquire available information and act wisely on it’. (18)
42. In the light of that information, I share the Commission’s view that the term ‘reasonably’ in the expression ‘reasonably well-informed and reasonably observant and circumspect’ used in recital 18 of Directive 2005/29 does not mean ‘perfectly’ or even ‘particularly’. In that regard, I recall that, as Advocate General Medina has stated, ‘the concept of the average consumer is a fictio juris’, whose purpose is to ‘reduce to a common denominator situations which are very varied’. (19) That concept originates from cases in which the Court was required to weigh the risk of misleading consumers against the requirements of the free movement of goods. (20) It is an objective benchmark, which is used not only within the context of Directive 2005/29, but also in many other instruments of EU consumer law, as well as in other fields of EU law. (21) I note that the Court has held, in relation to Directive 93/13/EEC on unfair terms in consumer contracts, (22) that the standard of the ‘average consumer’ cannot be deemed to correspond, inter alia, either to a consumer who is less well informed or circumspect than that average consumer, or to a consumer who is better informed or circumspect than the latter. (23) I do not see why that standard should be interpreted differently in the context of the application of Directive 2005/29.
43. In the light of that broader context, I understand that the purpose of the terms ‘reasonably well-informed and reasonably observant and circumspect’ in recital 18 of Directive 2005/29 is not to ‘raise the bar’ in terms of what can be expected of a typical consumer in relation to a given commercial practice, by requiring him or her to be, ad minima, systematically a rational individual who is proactive in obtaining the relevant information, who rationally processes the information presented to him or her and who is, thus, able to make informed decisions (much like a ‘homo economicus’). Rather, those terms are intended to ensure that national courts and authorities do not adopt the perspective of a consumer who is so little informed, observant and circumspect that it would be unreasonable or disproportionate to protect him or her. In that regard, I note that, in its Guidance on the interpretation of Directive 2005/29, (24) the Commission has expressly excluded from the scope of protection only the ‘very credulous, naive or cursory consumer’, whose protection it considered would be ‘disproportionate and create an unjustified barrier to trade’. That is quite a low minimum threshold.
44. For that reason, I disagree with Compass Banca’s argument that because Directive 2005/29 contains a specific provision on the protection of ‘particularly vulnerable’ groups of consumers (namely, Article 5(3) thereof), the ‘average consumer,’ to which Article 5(2) of that instrument refers, is, in turn, an individual capable of acting rationally, under any circumstances. In my view, the fact that the EU legislature intended to afford greater protection to ‘particularly vulnerable groups’ of consumers does not mean that it did not intend to provide a high level of protection to consumers who are not part of those groups or that it regarded them as invulnerable, perfectly rational individuals under any circumstance.
45. Third, the objective of Directive 2005/29, which is to provide a ‘high level of consumer protection’, in my view confirms that interpretation. Indeed, that protective function – which, as I noted in the introduction, is the backbone not only of that directive but of many of the texts adopted by the EU legislature in the field of consumer protection – would not be required if the ‘average consumer’ were always to be understood according to the ‘homo economicus’ model. At the risk of stating the obvious, it seems to me that the EU legislature would not have adopted Directive 2005/29 (the purpose of which is to protect consumers against practices that are likely to ‘materially distort [their] economic behaviour’), if it had considered that consumers are always capable of acting rationally.
46. In that regard, I note that the Court has already expressly acknowledged that the economic behaviour of consumers may be impaired by commercial practices which exploit their cognitive biases. (25) Furthermore, Directive 2005/29 contains several terms and expressions which imply that consumers can be manipulated and suffer from such biases (for example, the terms ‘apply pressure’ in Article 2(j), ‘materially distort’ in Article 2(e) and Article 5(2), ‘deceive’ in Article 6 or ‘influence’ in Articles 8 and 9).
47. Fourth, it is true that the Court has stated, in the judgment in Deroo-Blanquart (26) (a case which concerned a commercial practice consisting of the sale of a computer equipped with pre-installed software), that the requirement of fairness laid down in Directive 2005/29 may be regarded as satisfied ‘particularly if correct information is provided to consumers’. However, I do not believe that that statement was premised on the idea that consumers would necessarily act rationally if they were actually presented with (or had access to) all the relevant information (in line with the ‘homo economicus’ model). In that judgment, the Court merely identified the fact that the consumer was correctly informed as one of the circumstances that were likely to establish that the requirement of honest market practices or of the principle of good faith was satisfied. (27)
48. Finally, I agree that one of the core objectives of Directive 2005/29 is to protect consumers’ ability to make informed decisions. That objective is illustrated, for example, by Article 2(e) of that directive, which refers to a commercial practice used to ‘appreciably impair the consumer’s ability to make an informed decision, thereby causing the consumer to take a transactional decision that he [or she] would not have taken otherwise’. (28) Article 2(j) of that directive, which defines the concept of ‘undue influence’, also refers to ‘the consumer’s ability to make an informed decision’. Moreover, Article 7 of Directive 2005/29 (which is entitled ‘Misleading omissions’) is based on the rationale that the more information is provided to consumers, the less likely they are to be misled. However, I do not read those provisions as meaning that the ‘average consumer’ is an individual who, but for the ‘unfair’ commercial practice, would necessarily make such an informed decision (as a ‘homo economicus’ would). Indeed, Article 2(e) and (j) of Directive 2005/29 merely indicates that a practice is ‘unfair’ if it materially impairs the consumer’s ability (or potential) to make such a decision.
49. In the light of those elements, I am of the view that the ‘average consumer’, whom Directive 2005/29 requires that national courts and authorities use as a ‘benchmark’, is not necessarily a rational individual who is proactive in obtaining the relevant information, who rationally processes the information presented to him or her and who is, thus, able to make informed decisions. Whereas, in some situations, the ‘average consumer’ may be such an individual, the concept is flexible enough for him or her to be perceived, in other situations, as an individual with ‘bounded rationality’, who acts without obtaining the relevant information or is unable to process rationally the information provided to him or her (including the information which is presented to him or her by the trader).
50. In the next section, I will explore, inter alia, the importance of that last element (how the information is presented to the consumer by the trader) within the specific context of Articles 8 and 9 of Directive 2005/29.
B. The assessment of the ‘aggressive’ character of a commercial practice whereby the trader not only cross-sells two products but also presents information to its customers in a manner that makes them believe that they must necessarily purchase the two products together (Question 2)
51. The second question concerns whether a commercial practice whereby the trader not only cross-sells two products but also presents information to its customers in a manner that makes them believe that they must necessarily purchase the two products together is inherently ‘aggressive’, within the meaning of Directive 2005/29.
52. First, I observe that, although the referring court enquires about the ‘aggressive’ character of such a practice, it refers to a single provision, namely Article 6(1) of Directive 2005/29, which lists the conditions in which a commercial practice can be regarded as ‘misleading’ (not ‘aggressive’). Article 5(4) of that directive makes clear that ‘misleading’ and ‘aggressive’ commercial practices are two distinct types of ‘unfair’ commercial practices. (29) As the parties to the main proceedings and interested parties have all noted in their observations, ‘aggressive’ commercial practices are not covered by Article 6(1) of Directive 2005/29, (30) but by Articles 8 and 9 thereof. Thus, I propose that the Court reformulate the second question to include a reference to those provisions only.
53. Second, I recall that the Court has already held that combined offers, which are based on linking together at least two different offers of products or services in a single offer, constitute commercial acts which clearly form part of an operator’s commercial strategy and relate directly to the promotion thereof and its sales development. It follows that they do indeed constitute ‘commercial practices’, within the meaning of Article 2(d) of Directive 2005/29, and, consequently, come within the scope of that instrument. (31) The same is true, in all logic, of commercial practices consisting in the cross-selling of two products (where not only are two products offered by the trader to the customer at the same time, but the sales relating to those two products are also concluded simultaneously). In fact, the Court does not operate a clear distinction between those two commercial practices. (32)
54. Furthermore, the Court has already ruled that Directive 2005/29 must be interpreted as meaning that it precludes a general and pre-emptive prohibition of combined offers without any verification of their unfairness in the light of the criteria laid down in Articles 5 to 9 of that directive. (33) In my view, the same reasoning can again, without difficulty, be applied to a commercial practice that consists in the cross-selling of two products. Such a practice cannot be generally prohibited and cannot be regarded as inherently ‘unfair’.
55. Having made those clarifications, I note that, by the second question, the referring court inquires whether a commercial practice whereby the trader not only cross-sells two products but also presents information to its customers in a manner that makes them believe that they have no choice but to purchase the two products together is inherently ‘aggressive’, within the meaning of Directive 2005/29. I understand that by the term ‘inherent’, the referring court means ‘in all circumstances’, regardless of other features of the commercial practice and the relevant context.
56. Turning to Articles 8 and 9 of Directive 2005/29, I note that the first of those provisions makes clear that the assessment of whether a commercial practice is ‘aggressive’, within the meaning of those provisions, must be based on ‘its factual context, taking account of all its features and circumstances’. The national competent authorities must analyse, in the light of those various elements, whether the commercial practice at issue ‘significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise’. In that regard, the Court has already confirmed that Article 8 of Directive 2005/29 entails an obligation to take account of all the features of the conduct of the trader in the factual context concerned. (34)
57. Furthermore, the practice must use ‘harassment, coercion, including the use of physical force, or undue influence’, within the meaning of Article 9 of that directive. (35) That provision contains a list of circumstances (such as the timing, location, nature or persistence of the practice) which are relevant to verifying whether that last requirement is satisfied.
58. In my view, the wording of Articles 8 and 9 of Directive 2005/29 already indicates that whether a commercial practice is ‘aggressive’ generally depends on a contextual assessment. Of course, it cannot be excluded, in the light of those provisions, that certain commercial practices may be deemed inherently ‘aggressive’ and, therefore, ‘unfair’, within the meaning of that directive. However, it is clear to me that, should they exist, such practices would constitute the exception, rather than the rule.
59. That interpretation is then confirmed by Annex I to Directive 2005/29, which contains a sort of ‘blacklist’ of certain practices which are to be deemed ‘unfair’ under any circumstances. It lists, on the one hand, in points 1 to 24, the commercial practices which can be regarded as ‘misleading’ under any circumstances and, on the other hand, in points 24 to 31, the practices which are to be regarded as ‘aggressive’ (again, under any circumstances). None of the commercial practices enumerated in those points and relating to that second category refers to or includes a practice whereby the trader not only cross-sells two products but also presents information to its customers in a manner that makes them believe that they must necessarily purchase the two products together.
60. In that regard, Article 5(5) of Directive 2005/29 states that ‘Annex I contains the list of those commercial practices which shall in all circumstances be regarded as unfair’ and that ‘the same single list shall apply in all Member States and may only be modified by revision of [that] [d]irective’. Furthermore, recital 17 of that instrument provides that Annex I thereto ‘contains the full list of all such practices’ and that ‘these are the only commercial practices which can be deemed to be unfair without a case-by-case assessment against the provisions of Articles 5 to 9’. In the light of those elements, I understand that the list of commercial practices provided in that annex is exhaustive. (36)
61. I add that the Court has held that that Directive 2005/29 ‘fully harmonises the rules relating to unfair business-to-consumer commercial practices and that the Member States may therefore not adopt stricter measures than those provided for [under that directive], as expressly laid down in Article 4 thereof, even in order to achieve a higher level of consumer protection’. (37)
62. In the light of those elements, it is clear to me that a commercial practice whereby the trader not only cross-sells two products but also presents information to its customers in a manner that makes them believe that they must necessarily purchase the two products together cannot be regarded as inherently ‘aggressive’, within the meaning of Articles 8 and 9 of Directive 2005/29. Indeed, that practice is not listed in Annex I to that directive. Therefore, national courts and authorities must analyse the ‘aggressive’ character of such a practice, in the light of the requirements laid out in those articles – from which it follows, inter alia, that the commercial practice must be examined ‘in its factual context, taking account of all its features and circumstances’.
63. All the parties and interested parties to the present case agree with that conclusion.
64. I wish to make one further remark.
65. I understand from the reference for a preliminary ruling that the reason why the referring court mentions, in the second question, Article 6(1) of Directive 2005/29, rather than Articles 8 and 9 thereof, is that Article 6(1) explicitly refers to the ‘overall presentation’ of the information provided to consumers as being relevant to determine whether a commercial practice is ‘misleading’. As I have already noted in point 50 above, that court seems to me to wonder whether the manner in which information is presented (or ‘framed’) by the trader is also relevant within the context of the application of Articles 8 and 9 of Directive 2005/29.
66. In my view, the answer to that underlying question can be easily deduced from the elements that I have listed in points 52 to 62 above.
67. Indeed, Article 8 of Directive 2005/29 requires, as I have just explained, that, when the national competent authorities assess the ‘aggressive’ character of a commercial practice, they take account of, inter alia, all the ‘features’ of such a practice. I consider, as the Italian Government also does, that the way in which information is presented or ‘framed’ by the trader to its customers is such a relevant ‘feature’.
68. In that regard, I add that ‘undue influence’ is defined, under Article 2(j) of Directive 2005/29, as the act of ‘exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision’. It follows, in my view, that ‘undue influence’ can be exercised through a variety of means, including how the offer is presented (or ‘framed’) to the consumer by the trader.
69. Furthermore, the Court has already emphasised, in its case-law, particularly in the judgment in Orange Polska, (38) the importance of the manner in which the information is presented to the consumer within the context of the application of Articles 8 and 9 of Directive 2005/29. In that judgment, the Court confirmed that additional practices which relate to how the information is presented by the trader to the consumer in the context of the process for concluding or amending a contract (for example, a practice by which the trader or its courier insists on the need to sign the contract by announcing that any delay in signing the contract is possible only under less favourable conditions) may lead to the conclusion that a commercial practice, which is not inherently ‘aggressive’, is regarded as ‘aggressive’ in such a situation. (39)
70. In the light of those elements, it is clear to me that how the information is presented (or ‘framed’) to the consumer by the trader constitutes a ‘feature’ of a commercial practice, which must be taken into account as part of the assessment whether such a practice is ‘aggressive’ and, therefore, ‘unfair’, within the meaning of Directive 2005/29.
71. It follows that, when performing that assessment in relation to a commercial practice whereby the trader not only cross-sells two products but also presents information to its customers in a manner that makes them believe that they must necessarily purchase the two products together, the national competent authorities must take account of that fact. Drawing a link with the elements which I have outlined in the previous section, I am of the view that that fact must be given particular importance in a situation where the ‘average consumer’ is (for reasons relating, for example, to the complexity of the field to which the products relate or the economic pressure he or she is under at the time when he or she purchases the products) to be understood as an individual with ‘bounded rationality’, who acts without obtaining the relevant information or is unable to process rationally the information provided to him or her (including the information which is presented to him or her by the trader).
C. The referring court’s doubts about the burden of proof (Question 5)
72. By the fifth question, the referring court wonders, in essence, how it should respond to Compass Banca’s argument that the AGCM’s finding that its commercial practice is ‘aggressive’, on the mere ground that it consists in the cross-selling of two products, leads to an unjustified and unacceptable reversal of the burden of proof from the AGCM to Compass Banca.
73. In my view, the fifth question is not difficult to answer. Indeed, I have already explained, in my answer to the second question, that a commercial practice cannot be regarded as inherently ‘aggressive’, within the meaning of Directive 2005/29, and be prohibited simply because it consists in the cross-selling of two products. Instead, the national competent authorities must analyse the ‘aggressive’ character of such a practice in the light of the requirements laid out in Articles 8 and 9 of that directive (that is to say, ‘practice by practice’, with each practice being examined ‘in its factual context, taking account of all its features and circumstances’).
74. It is clear to me that, in such a situation, the trader does not face an unacceptable (reversed) burden of proof. In fact, the burden of proof does not shift at all to the trader, since it is for the national competent authorities to establish the ‘aggressive’ and, therefore, ‘unfair’ character of the commercial practice at issue. I note that Europe Assistance Italia, the Commission and the Italian Government all share that view.
D. The possibility for the national competent authorities to impose a seven-day interval between the signing of the contracts for products which are cross-sold (Question 3)
75. In the previous sections, I have established that a commercial practice consisting in the cross-selling of two products cannot be regarded as inherently ‘aggressive’, within the meaning of Articles 8 and 9 of Directive 2005/29, and that the same is true of a commercial practice whereby the trader not only cross-sells two products but also presents information to its customers in a manner that makes them believe that they must necessarily purchase the two products together.
76. However, that does not mean that such practices can never be regarded as ‘aggressive’, within the meaning of those provisions. It all depends on whether the commercial practice at issue is, ‘in its factual context, taking account of all its features and circumstances’, one which uses ‘harassment, coercion, including the use of physical force, or undue influence’ and ‘significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise’.
77. The third question has as its premiss that the commercial practice implemented by Compass Banca – which consists in the cross-selling of two products – is ‘aggressive’, in the light of the following elements: (i) the fact that a loan applicant is applying for a loan because he or she is in need; (ii) the complexity of the contracts presented by Compass Banca for signature by its customers; (iii) the concurrent nature of the offers for the personal loan and insurance policy contracts; and (iv) the short period granted to take up those offers.
78. I agree with the referring court that those various elements (together with the fact that, as I understand it, Compass Banca presents or ‘frames’ information to its customers in a manner that makes them believe that they have no choice but to accept the insurance policy contract together with the loan contract) are relevant in order to show ‘undue influence’, within the meaning of Article 9 of Directive 2005/29.
79. Indeed, the elements listed in that provision include the ‘timing, location, nature or persistence’ of the practice, as well as ‘the exploitation by the trader of any specific misfortune … of which the trader is aware, to influence the consumer’s decision with regard to the product’. In my view, in a situation such as the one in the main proceedings, that last element could include the fact that the trader mentions to the consumer personal events (relating, for example, to their health) which – if they were to materialise – could affect his or her ability to repay a loan which he or she has contracted with the trader.
80. As to whether those elements are sufficient to establish that the practice implemented by Compass Banca not only uses ‘undue influence’, within the meaning of Article 9 of Directive 2005/29, but also ‘significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product’, thereby causing him or her to take a transactional decision that he or she ‘would not have taken otherwise’ (pursuant to the requirements set out in Article 8 of Directive 2005/29), I am of the view that the answer to that question depends on whether that practice presents other features and whether there are other relevant circumstances which either mitigate or, on the contrary, aggravate the impact of those elements on the ‘average consumer’s freedom of choice or conduct’. It is for the referring court to make that determination.
81. Against that background, I understand that the third question concerns, in essence, the measures that a national authority such as the AGCM can take in a situation where it concludes that a commercial practice such as the one implemented by Compass Banca does meet those requirements. In those circumstances, can such an authority impose a seven-day period between the signing of the contracts for the two products?
82. In my view, the answer to that question is, again, obvious in the light of all the elements that I have outlined in the previous sections.
83. Indeed, Article 5(1) of Directive 2005/29 states, in unequivocal terms, that ‘unfair commercial practices shall be prohibited’. I fail to see any reason why – if a practice that consists in the cross-selling of two products is, in the light of all its features and the relevant circumstances, ‘aggressive’ and, therefore, ‘unfair’ within the meaning of that directive – that prohibition could not be achieved by requiring that the signing of the two contracts be separated by an interval of seven days, to ensure that the two sales actually take place on different dates that are reasonably distanced from one another.
E. The consequence of the fact that the products are financial and insurance products (Question 4)
84. The fourth question is linked to the fact that the products cross-sold by Compass Banca in the main proceedings consist, in part, of insurance products. The referring court seeks clarification as to whether, given the nature of those products, it is still possible for the AGCM to impose an interval of seven days between the signing of the loan contract and the signing of the insurance policy contract offered by that company, in application of Directive 2005/29. It notes that Article 24 of Directive 2016/97 makes the ‘distributors’ (40) of insurance products that are cross-sold with other products subject to certain specific obligations. (41) That court wonders, in essence, whether a conflict exists between that provision and Directive 2005/29.
85. I note that, in the fourth question and the reference for a preliminary ruling, the referring court mentions Article 24(3) and (7) of Directive 2016/97 only. However, I shall consider Article 24 in its entirety in my analysis of that question.
86. As to whether a conflict exists between Directive 2005/29 and that provision, I observe, first, that Article 3(4) of Directive 2005/29 provides that ‘in the case of conflict between the provisions of this Directive and other Community rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects’. (42)
87. Second, I recall that the Court has already explained that the term ‘conflict’ in that provision refers to the ‘relationship between the provisions in question which goes beyond a mere disparity or simple difference, showing a divergence which cannot be overcome by a unifying formula enabling both situations to exist alongside each other without the need to bring them to an end’. It has stated that ‘a conflict such as that envisaged in Article 3(4) of Directive 2005/29 is present only where provisions, other than those of [that directive], which regulate specific aspects of unfair business practices, impose on undertakings, in such a way as to leave them no margin for discretion, obligations which are incompatible with those laid down in Directive 2005/29’. (43)
88. Third, I understand, as Compass Banca also does, that Article 24 of Directive 2016/97 imposes obligations on ‘insurance distributors’ in two situations. The first situation is where an ‘insurance product’ is offered ‘together with an ancillary product or service which is not insurance, as part of a package or the same agreement’. (44) The relevant sub-provisions that apply to that situation are the following:
– the insurance distributor shall inform the customer whether it is possible to buy the different components separately and, if so, shall provide an adequate description of the different components of the agreement or package as well as separate evidence of the costs and charges of each component (Article 24(1));
– the insurance distributor must specify the demands and needs of the customer in relation to the insurance products that form part of the overall package or the same agreement (Article 24(6)); and
– Member States may maintain or adopt additional stricter measures or intervene on a case-by-case basis to prohibit the sale of insurance together with an ancillary service or product which is not insurance, as part of a package or the same agreement, when they can demonstrate that such practices are detrimental to consumers (Article 24(7)).
89. Out of the three sub-provisions which I have just mentioned, only the last one (Article 24(7)) seems to me to be potentially incompatible with the provisions of Directive 2005/29. Indeed, as I have explained in the previous section, that directive must be interpreted as meaning that, if a commercial practice is not expressly listed in Annex I thereto, it cannot be prohibited on the ground that it is inherently ‘unfair’ (that is to say, ‘unfair’ under any circumstances).
90. Having said that, I consider that Article 24(7) does not require, or even authorises, Member States to introduce such a general prohibition. Indeed, that provision merely provides that the cross-selling of insurance products and ancillary products or services ‘may’ be prohibited on a ‘case by case basis’ by Member States, when they can demonstrate that a practice is detrimental to consumers.
91. I would add that that strict interpretation is supported, in my view, by recital 53 of Directive 2016/97, which provides that ‘cross-selling practices are a common strategy used by insurance distributors throughout the [European] Union’ and acknowledges that, while such practices can ‘represent practices where the interests of customers are not adequately considered’, they can also ‘provide benefits to customers’.
92. At any rate, Article 24(7) of Directive 2016/97 only applies if (i) the insurance product can be regarded as the ‘main’ or ‘principal’ product and the other product or service is ‘ancillary’ or ‘accessory’ to it; and (ii) both products are ‘offered as part of a package or the same agreement’. It is for the referring court to examine whether the products offered by Compass Banca meet those requirements. However, in the light of the elements provided in the case file, I doubt that the personal loan that that company offers to its customers could be regarded as ‘ancillary’ to the insurance policy which it proposes that they purchase conjointly. If anything, the opposite seems to me to be closer to the truth, since Compass Banca’s commercial practice consists in selling an insurance policy to customers who are already in the process of contracting a personal loan with that company.
93. The second set of obligations listed in Article 24 of Directive 2016/97 applies when ‘an insurance product is ancillary to a good or a service which is not insurance, as part of a package or the same agreement’ (a scenario which, as I have just explained, appears to be a better fit for the facts at hand in the main proceedings). The relevant sub-provisions are the following:
– the insurance distributor must offer the customer the opportunity to buy the good or service separately (unless the good or service to which the insurance product is ancillary comes within the scope of specific provisions of certain other directives) (Article 24(3)); and
– the insurance distributor must specify the demands and needs of the customer in relation to the insurance products that form part of the overall package or the same agreement (Article 24(6)).
94. Again, I fail to see any incompatibility between the obligations contained in those sub-provisions and the rules contained in Directive 2005/29. In particular, I consider that Article 24(3) of Directive 2016/97 does not require the national competent authorities to go further than what Directive 2005/29 requires, for example, by stating that they must generally prohibit the cross-selling of insurance products that are ancillary to other products or services (including financial products). Indeed, that provision merely requires that, if such products and/or services are ‘cross-sold’ to customers, the customers also have the option of buying them separately.
95. Nor does that provision require those authorities to do anything less than what they are entitled to do under Directive 2005/29. Specifically, I am of the view that Article 24(3) of Directive 2016/97 does not preclude a national competent authority such as the AGCM from imposing an interval of seven days between the signing of two contracts relating to, respectively, a personal loan and an insurance policy that are offered conjointly by the same trader, where such a practice is shown, ‘in its factual context, taking account of all its features and circumstances’, to be ‘aggressive’ and, therefore, ‘unfair’, within the meaning of Articles 8 and 9 of Directive 2005/29.
96. In those circumstances, I propose that the Court answer the fourth question to the effect that there is no conflict between the provisions of Directive 2005/29 and those of Article 24 of Directive 2016/97. The latter provision does not require the national competent authorities to go further than what Directive 2005/29 requires, for example by generally prohibiting a commercial practice that consists in the cross-selling of a personal loan and an insurance policy. Nor does it preclude those authorities from imposing an interval of seven days between the signing of the two contracts relating to those products, if the commercial practice at issue is shown, ‘in its factual context, taking account of all its features and circumstances’, to be ‘aggressive’ and, therefore, ‘unfair’, within the meaning of Articles 8 and 9 of Directive 2005/29.
97. I shall finish this section by saying a few words about the fact that the products which Compass Banca cross-sells to its customers are not only ‘insurance products’, within the meaning of Directive 2016/97, but also financial products. The relevant provision in that regard is Article 3(9) of Directive 2005/29. That provision states that ‘in relation to “financial services”, as defined in Directive 2002/65/EC [(45)], … Member States may impose requirements which are more restrictive or prescriptive than [Directive 2005/29] in the field which it approximates’. A ‘financial service’ is defined, under Article 2(b) of Directive 2002/65, as ‘any service of a banking, credit, insurance, personal pension, investment or payment nature’. Those services include the sale of both a personal loan and an insurance policy, such as those that Compass Banca offers to its customers.
98. I gather from those elements that had the Italian legislature decided, in reliance on the lex specialis contained in Article 3(9) of that directive, to adopt a measure to the effect that the cross-selling of a personal loan and an insurance policy is generally prohibited (an element which it is for the referring court to verify), such a measure would have been compatible with that instrument.
99. I note that Compass Banca and Europe Assistance Italia argue, however, that such a measure has not been adopted by the Italian legislature. (46) On that basis, it seems to me that Article 3(9) of Directive 2005/29, therefore, does not affect the conclusions which I have reached in the previous sections.
V. Conclusion
100. In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy) as follows:
(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 (‘Unfair Commercial Practices Directive’)
must be interpreted as meaning that the ‘average consumer’ is not necessarily a rational individual who is proactive in obtaining the relevant information, who rationally processes the information presented to him or her and who is, thus, able to make informed decisions. Whereas, in some situations, the ‘average consumer’ may be considered as able to act rationally and make an informed decision, the concept is flexible enough for him or her to be perceived, in other situations, as an individual with ‘bounded rationality’, who acts without obtaining the relevant information or is unable to process rationally the information provided to him or her (including the information which is presented to him or her by the trader).
(2) Articles 8 and 9 of that directive
must be interpreted as meaning that a commercial practice whereby a trader not only cross-sells two products but also presents information to its customers in a manner that makes them believe that they must necessarily purchase the two products together is not inherently ‘aggressive’, within the meaning of those provisions. The competent authorities of the Member States must assess such a commercial practice ‘in its factual context, taking account of all its features and circumstances’, to determine whether it meets the requirements laid out in those provisions. The burden of proof does not shift to the trader. However, if, at the conclusion of that assessment, those authorities conclude that the commercial practice is ‘aggressive’ within the meaning of those provisions, they must prohibit it. In that regard, they can, for example, require that the signing of the contracts for the two products be separated by an interval of seven days. Furthermore, if the two products relate to ‘financial services’, the Member States can adopt rules to the effect that the cross-selling of those products is prohibited in application of the lex specialis contained in Article 3(9) of the same directive.
(3) Article 24 of Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution
must be interpreted as meaning that it does not preclude the competent authorities of the Member States from imposing an interval of seven days between the signing of two contracts relating to, respectively, a personal loan and an insurance policy that are offered conjointly by the same trader, where such a practice is shown, ‘in its factual context, taking account of all its features and circumstances’, to be ‘aggressive’ and, therefore, ‘unfair’ within the meaning of Directive 2005/29.