Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 2.

(1) The mentioning on a website and in the general terms and conditions of a service only, that the consumer can exceed an agreed maximum budget, constitutes a misleading commercial practice.

(2) The average consumer cannot be expected to read complex technical-legal terms and conditions applicable to products.

(3) When a consumer concludes a contract with a trader at the trader's physical sales point, the mentioning of applicable terms and conditions on a website does not suffice as the consumer has no access to the website on the moment he takes the transactional decision.

 

According to several consumer complaints the defendant, a telecom operator, omitted to inform the consumers that they could exceed the budget of a prepaid subscription in case of data traffic or internet use on their mobile phones, whereas such a subscription exactly intends to allow the consumer to have full control over telephone budget.

It was established that indeed, the defendant allowed consumers to exceed their prepaid budget in case of data traffic or surfing on the internet. The possibility to exceed the prepaid budget was mentioned in the general terms and conditions relating to the subscription and on the website of the defendant only.

 

Does the mentioning on a website and in the general terms and conditions of a service only, that the consumer can exceed an agreed maximum budget, constitute a misleading commercial practice?

The Authority ruled that there was no clear information to the consumers relating to the possibility to exceed a prepaid budget, as this possibility was only indicated in the relevant terms and conditions. As a result, the consumer was deprived of its possibility to make an informed transactional decision, e.g. choosing another subscription type or not to send data through or use the internet on a mobile phone.

As to the fact that of the mentioning in the general terms of the subscription, the Authority cleared out that the average consumer does not read these rather technical-legal terms of such services which are commonly printed in small font size and difficult to read for the average consumer.

Additionally, that the defendant informed consumers on this on its website made no difference to the Authority, as the consumer does not have access to this website on the moment he subscribes to the service in the defendant's sales point.

 

URL: http://www.agcm.it/ricerca-avanzata/open/C12560D000291394/C889A7ABCFE29478C12578060049EE06.html

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Based on the gravity and duration of the practice, the Italian Competition Authority imposed a financial sanction amounting to 90.000 EURO.