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, in the case of telephone sales, has to be provided orally before the conclusion of a contract as well as after the conclusion in a readable and durable medium which must be adjusted to the needs of consumers, for example, elderly consumers. This information should include: under what conditions this right exists, the period within which to exercise this right, how to exercise it, and if there is a standard form for it, where to find this form. Not providing information at all, or only part of the information leads to the application of the Marketing Act, namely the omission of information is misleading.

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 and change this part of the decision. Since it is a final judgement, there is no possibility for appeal to the Supreme Court.

2. Information given by the trader, which gives the impression that the consumer is offered a discount in their existing telephone subscription, while in reality, they were concluding a new subscription contract with another operator, is not clear and adequate and therefore misleads consumers. Therefore, 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.

1. Seniortelefoni Sverige AB (defendant), provided call centre services, such as selling telephone subscriptions to elderly consumers. After receiving complaints made by consumers to the National Consumer Authority, The Consumer Ombudsman filed a claim asking from the Court of First Instance to prohibit some commercial practices deployed by the defendant, namely a) leaving incorrect, unclear and unintelligible information regarding the right to withdrawal, b) not clearly informing on behalf of which trader they made the promoting actions and what the reason of the call was c) giving the impression that the defendant represents or works with the existing telephone operator of the consumers when this was not the case and d) asking for payment for a service for which the consumer had not entered a contract. The Court of First Instance accepted the Consumer Ombudsman’s claims except for the one under (d). Both parties filed an appeal.

 

2. Seniortelefoni Sverige AB (defendant) provided communication services, such as selling telephone subscriptions to elderly consumers. After complaints were 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) leaving incorrect, unclear and unintelligible information regarding the right of withdrawal, b) not clearly informing on behalf of which trader they made the promoting actions and what the reason of the call was, c) giving the impression that the defendant represents or works with the existing telephone operator of the consumers when this was not the case and d) asking for a payment for a service for which the consumer had not agreed to. The Court of First Instance accepted the Consumer Ombudsman’s claims except for the one under (d). 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 clear and understandable information related to the right to withdrawal, both orally before the conclusion of a contract as well as in a readable and durable medium after the conclusion of the contract. The information must be provided in a way that shows that the needs of consumers have been taken into consideration.

 

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 average consumer of the target group is given the impression that no new subscription is ordered but merely some discounts in the existing one, 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/pmt-10059-18.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 (d) 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 defendant also deployed the commercial practice under (d), namely the defendant asked for a payment for a service for which the consumer had not agreed to, and therefore, 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.