On 19 September 2013, the Court of Justice of the European Union gave its interpretation on the "professional diligence" as a constitutive element of companies liability under the Parliament and Council Directive 2005/29/EC ("the Unfair Commercial Practices Directive"). The issue was referred for a preliminary ruling by the Austrian Supreme Court (Case C-435/11).
The case which was brought before the Austrian Supreme Court concerned an Austrian travel agency which in its brochure stated that it had exclusivity rights on booking services for certain hotels. In fact the hotels concerned had, by contract, guaranteed such exclusivity to the travel agency, but they did not honour it. Thus the information contained in brochures was objectively incorrect and constituted, from the viewpoint of the average consumer, a misleading commercial practice.
In accordance with Article 5(2) of the above mentioned Directive: "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". In addition, more specifically on misleading practices, Article 6(1) of the Directive states that: "a commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer".
As clearly summarized by the Court of Justice, the Austrian Supreme Court raises the question "whether for the purpose of applying Article 6(1), and with a view to treating the travel agency's practice as 'misleading' within the meaning of that provision, it is sufficient to examine that practice in the light of the criteria specified in that provision alone which (according to the findings of the Court of Justice) are all met in the present case; or whether, on the contrary, it is necessary to determine, in addition, whether the condition as to whether the commercial practice is contrary to the requirements of professional diligence (...) which would not, however, be the case in this instance, on the ground that the travel agency concerned had done everything to secure the exclusivity it claimed in its sales brochures".