Case law

  • Case Details
    • National ID: Administratīvās rajona tiesas spriedums lietā Nr. A42774708
    • Member State: Latvia
    • Common Name:link
    • Decision type: Administrative decision, first degree
    • Decision date: 21/07/2010
    • Court: District Court of Administrative Cases (Riga)
    • Subject:
    • Plaintiff: SIA "Fiji travel alma tour group"
    • Defendant: Consumer Rights Protection Centre
    • Keywords: ability to supply, advertisement, false impression, misleading advertising
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 4, Article 13 Unfair Commercial Practices Directive, Annex I, 5.
  • Headnote
    (1) When a product is not available at the lowest price specified in an advertisement and a trader has not specified any (time or quantity) limitations in the advertisement, the advertisement should be considered as false and misleading.

    (2) A professional trader has to foresee the possibility that a certain product cannot be supplied.

    (3) In order to assess whether an advertisement is unfair, it is not required to investigate whether or not a customer has actually purchased the advertised product. .
  • Facts
    The plaintiff is a travel agency that had distributed advertisements offering certain travel tours with a specific "starting at" price. However, when approached, the plaintiff had no actual tours to the destinations at the proclaimed lowest "starting at" price. The Consumer Rights Protection Centre (CRPC) found this to constitute an unfair commercial practice.

    The plaintiff appealed this decision and argued that:

    (1)  there were only a limited number of products available and that three products had effectively been sold, confirming that the advertisement corresponded with the offer;

    (2) its business partner informed the plaintiff that it was no longer possible to provide the product, therefore exempting the plaintiff from its obligation to provide the products;

    (3) consumers had not purchased the product, so therefore there were no negative consequences to consumers.
  • Legal issue
    The court found that in order to attract more customers, the plaintiff had published an advertisement containing an offer that the plaintiff could not actually deliver.

    (1) The court first considered that no (time or amount) limitations were indicated in the advertisement. Hence, the plaintiff could not rely on the limited amount of products already sold.

    The court then considered that a statement that tours are offered "starting from" a certain price, does not imply that a consumer cannot request to conclude a contract at the lowest price specified in the advertisement. If the product is not available at the lowest price specified and a trader had not specified any limitations, the information in the advertisement should be considered as false and misleading.

    (2) Secondly, the court considered that a trader that has been engaged in a certain area of business for a long time, cooperating with certain partners in business, has to be able to foresee that, due to different aspects of business, the trader would not be able to provide the product promoted in the advertisement. As a professional provider of travel services, the plaintiff could foresee -- and had to foresee -- that the offer promoted in the advertisement could possibly not be met.

    (3) The court also noted that it is not required to establish negative consequences to find a commercial practice unfair, i.e., it is not required to investigate whether or not the consumer has purchased a product that exceeds the one specified in the advertisement.

     
  • Decision

    (1) Is a trader obliged to provide a product at the lowest price specified in the advertisement, in case the consumer would so request?

    (2) Does the inability for a supplier to provide the product free the trader from its responsibility to provide the advertised product?

    (3) Does the fact that consumers have not purchased the product affect the potential violation?

     

    URL: http://www.tiesas.lv/files/AL/2010/07_2010/21_07_2010/AL_2107_raj_A-02516-10_12.pdf

    Full text: Full text

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  • Result
    The plaintiff's claims were dismissed.