Unfair Commercial Practices Directive, Annex I, 1. Consumer Rights Directive, Chapter 3, Article 6

1. A trader providing call centre services promoting products of third parties has to provide information related to the consumer’s right to withdrawal in a clear and understandable way and in a manner that is appropriate for the communication channel used by the trader according to the Distance and Off-Premises Contracts Act (2005:59). This information should include: how to estimate the period in which the consumer may exercise the right of withdrawal, when it starts and when it ends, as well as if there is a standard form for exercising this right and where to find it. Such information has to be provided before the conclusion of a contract in a communication channel, for example by telephone, as well as within a reasonable time after the conclusion of the contract in a readable and durable medium if it has not already been provided this way. In the case of telephone sales, it does not suffice to have the information on the right to withdrawal in the general terms and conditions on the trader’s website. Similarly, the telephone seller must also provide information regarding their name, reason for calling, the trader’s identity, and the seller’s relation to the trader according to the Distance and Off-Premises Contracts Act (2005:59).

Relevance: The information obligations related to the right of withdrawal were defined by the Court of First Instance, but the Court of Appeal did not discuss this matter since the appeal did not refer to it. Since it is a final judgement there is no possibility for appeal to the Supreme Court.

 

2. Information provided by the trader which gives the impression that the consumer is offered a discount on their existing telephone subscription, while in reality, the trader was concluding a new subscription contract with another operator, is not clear and adequate and consequently misleads consumers. Such a practice where the trader asks for a payment for a service which the consumer did not order because they did not get clear and adequate information, is to be regarded as one of p. 29 of Annex I of the Directive.

Relevance: This is a final judgement without possibility for appeal to the Supreme Court. Following the decision in Svea Court of Appeal, Patent and Market Court of Appeal, Judgement PMT 10059-18, it establishes the interpretation of p. 29 of the Annex I

1. Fast Communication Sweden AB (defendant) provided communication services such as selling telephone subscriptions to consumers. After receiving complaints made by consumers to the National Consumer Authority, The Consumer Ombudsman filed a claim asking the Court of First Instance to prohibit some commercial practices deployed by the defendant, namely a) asking for payment for services which the consumers did not order, b) calling consumers registered in the do-not-call registry, c) providing information that was not correct and understandable with regard to the consumers’ right to withdrawal, d) not clarifying that the reason for calling was to sell telephone subscriptions and e) not clarifying that they do not represent the existing operator which consumers had at the time of the practice. The Court of First Instance decided that all practices, except for the one under (a), constitute unfair commercial practices. With regards to the information related to the right of withdrawal, the Court of First Instance stated that this information has to be provided before the conclusion of a contract with help of a communication medium like the telephone, as well as in a reasonable time after the conclusion of the contract in a readable and durable form if it has not already been provided this way. Both parties filed an appeal.

 

2. Fast Communication Sweden AB (defendant), provided call centre services, such as selling telephone subscriptions to consumers. The Consumer Ombudsman, after receiving complaints made by consumers to the National Consumer Authority, filed a claim asking the Court of First Instance to prohibit some commercial practices deployed by the defendant, namely a) asking for payment for services which the consumers did not order, b) calling consumers registered in the do-not-call registry, c) providing information that was not correct and understandable with regard to the consumer’s right to withdrawal, d) not clarifying that the reason for calling was to sell telephone subscriptions and e) not clarifying that the defendant was not representing the existing operator used by the consumers at the time of the practice. The Court of First Instance decided that all practices except for the one under (a) constitute unfair commercial practices. Both parties filed an appeal.

1. Should the information related to the right of withdrawal be provided to consumers by a trader in the case of telephone sales, and if so, when and how?

 

2. When is a commercial practice one prescribed in p. 29 of the “blacklist”?

1. A trader must always provide, in a clear and understandable way, information related to the right to withdrawal before the conclusion of a contract with help of a communication medium like the telephone, as well as in a reasonable time after the conclusion of the contract in a readable and durable form if it has not already been provided this way.

 

2. In order to decide whether a commercial practice is one of p. 29 of the “blacklist”, namely if the trader has provided a service which the consumer has not ordered, the Court has to examine whether the information given to the consumer is adequate and clear in a way that enables them to make a free choice. If, through the information that is provided, the consumer is under the impression that no new subscription is ordered but merely some discounts in the existing one are provided, this information is misleading and therefore asking for payment for such a service for which the consumer did not get clear and adequate information is to be considered as a practice under p. 29 of Annex I of the Directive.

URL: https://www.domstol.se/globalassets/filer/domstol/patentochmarknadsoverdomstolen/avgoranden/2019/10420-17.pdf

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1. The Court of Appeal upheld most of the judgement of the Court of First Instance but decided that the defendants also deployed the commercial practice under (a) and deemed this practice unfair.

2. The Court of Appeal upheld most of the judgement of the Court of First Instance but decided that the defendants also deployed the commercial practice under (a) and deemed this practice unfair.

The Court of Appeal defined in its judgement what the requisites for the application of p. 29 of Annex I of the Directive are.