Judgment of the Court (Fifth Chamber) of 12 June 2019 (request for a preliminary ruling from the Sąd Najwyższy — Poland) — Prezes Urzędu Ochrony Konkurencji i Konsumentów v Orange Polska S.A.

(Case C-628/17) (1)

(Reference for a preliminary ruling - Consumer protection - Directive 2005/29/EC - Unfair business-to-consumer commercial practices - Concept of an aggressive commercial practice - Consumer required to take a final transactional decision in the presence of the courier handing over the general terms and conditions of the contract)

(2019/C 263/04)

Language of the case: Polish

Referring court

Sąd Najwyższy

Parties to the main proceedings

Applicant: Prezes Urzędu Ochrony Konkurencji i Konsumentów

Defendant: Orange Polska S.A.

Operative part of the judgment

Article 2(j) and Articles 8 and 9 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 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 must be interpreted as meaning that the application by a trader of a model for concluding or amending contracts for the supply of telecommunications services, such as that at issue in the main proceedings, under which the consumer must take the final transactional decision in the presence of a courier who delivers the standard-form contract, without being able freely to take cognisance of the content of that contract while the courier is present:

—	does not constitute an aggressive commercial practice in all circumstances;

—

does not constitute an aggressive commercial practice through the exertion of undue influence solely on the ground that not all the standard-form contracts were sent to the consumer individually beforehand, for example by email or to his home address, where that consumer had the opportunity, prior to the courier’s visit, to take cognisance of their content; and

—

constitutes an aggressive commercial practice through the exertion of undue influence where the trader or its courier adopt unfair conduct, the effect of which is to put pressure on the consumer such that his freedom of choice is significantly impaired, such as conduct that makes that consumer feel uncomfortable or confuses his thinking concerning the transactional decision to be taken.

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(1)  OJ C 104, 19.3.2018.