For a few weeks (a specific time period was not specified in advance) the plaintiff was pursuing the so called "Great sales" campaign, during which consumers were able to purchase shoes with significant discounts. The day after the eventual termination of the campaign and restoring previous prices of certain shoes, the plaintiff sent a great number of SMS messages to members of its loyalty club, stating that in the three following days they would be able to purchase shoes with additional discount from the final sales price. A month after this, the plaintiff decreased the price of certain shoes to an even lower level.
One particular consumer appealed to the defendant, stating that she was misled by the plaintiff. After receiving the SMS and going to the store, she realized that the additional discount was calculated on the basis of a new, increased price rather than from the final price of previous sales.
After conducting an investigation, the defendant concluded that these practices were misleading actions with respect to the manner in which the price is calculated and the existence of specific price advantage, causing the consumer to take a transactional decision that she would probably not have taken otherwise. The defendant additionally stated that the commercial practice, where consumers are informed of final discounts available only for a very limited time and later on certain prices are still decreased to even lower level, violates the general prohibition of the unfair commercial practices, as it is contrary to requirements of professional diligence and 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. Therefore, a fine of LTL 6.000 (about 1.714 EUR) was imposed on the plaintiff.
The plaintiff appealed against the defendant’s decision before the Vilnius Regional Administrative Court, arguing that:
(1) This commercial practice cannot be considered as an unfair commercial practice and, in particular, not as a misleading action;
(2) The plaintiff cannot be punished for unfair commercial practices, because it did not intend to mislead consumers; and
(3) The defendant was not competent to adopt the decision in question because misleading advertising is controlled by an other administrative body, i.e. the Competition Council.