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Case Details

Case Details
National ID Court decision, XVII Ama 68/08
Państwo członkowskie Polska
Common Name link
Decision type Court decision in appeal
Decision date 26/10/2009
Sąd Sąd Ochrony Konkurencji i Konsumentów w Warszawie
Temat
Powód/powódka PTK Centertel sp. z o.o.
Pozwany/Pozwana The President of the Office of Competition and Consumer Protection
Słowa kluczowe

Unfair Commercial Practices Directive, Chapter 2, Article 5, 2. Unfair Commercial Practices Directive, Chapter 2, Article 5, 4. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1.

A mobile telephone offer included the obligation to conclude a contract for telecommunication services for the period of 24 or 30 months. The offer was valid from 7 th of November 2007 to 31 st of January 2008. According to the regulations of the offer the services were unavailable on 24, 25, 26 and 31 st of December 2007 and on 1 st of January 2008 and the cost of the phone call was calculated on the basis of the price list. 

This was considered to be an unfair commercial practice in first instance, confirmed by the present decision in appeal.

 
PTK Centertel, mobile operator of the Orange network is a business entity that provides customers with telecommunication services. The object of the proceedings was an advertising campaign introduced by the trader under the title "Bliskość tworzy święta" ("Closeness creates holidays"). One of the promotional offers in the course of that campaign "Wybrane 3 numery" ("3 chosen numbers") provided the possibility to make free phone calls to 3 Orange numbers or stationary numbers. The offer included the obligation to conclude a contract for telecommunication services for the period of 24 or 30 months. The offer was valid from 7 th of November 2007 to 31 st of January 2008. According to the regulations of the offer the services were unavailable on 24, 25, 26 and 31 st of December 2007 and on 1 st of January 2008 and the cost of the phone call was calculated on the basis of the price list. 

After the proceedings instituted by the President of the Office of Competition and Consumer Protection, according to the decision of the President of the Office, DDK 14/2008 dated 19 th of August 2008, the act of the PTK Centertel sp. z o.o. has been considered to be infringing the collective consumers interests, specified in art. 24 sec. 2 pt. 3 of the Protection of Competition and Consumer Act, constituting unfair commercial practice pursuant to art. 5 sec. 1 of the Prevention of the Unfair Commercial Practices Act. The President of the Office imposed a fine on the trader amounting to PLN 806.400,00 and granted an injunction to make public the decision on the website of the trader www.orange.pl and its preservation on the website for the period of 6 months, as well as double publication of the decision in the first 5 pages of the nationwide journal. 

The trader lodged an appeal and the Court of Competition and Consumer Protection heard the case.

 
It was discussed whether or not there are legal grounds for the admission of an appeal?

 

Secondly, the question arose as to whether the fine was relevant to the circumstances of the case?

 
The appeal was admitted.

The court considers that practices of the trader infringed the collective consumers interests constituting unfair commercial practice.

 

The court also considers that the fine imposed on the trader is not relevant to the circumstances of the case as services included in the offer were unavailable only for several days. The court decreased the amount of the fine to PLN 400.000.

 
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Appeal was admitted.

The court affirmed the decision of the President of the Office of Competition and Consumer Protection, but decreased the fine imposed.