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

Unilaterally changing the applicable terms and conditions of a consumer contract in such a way that it is very difficult for an average consumer to calculate the new imposed tariff, constitutes an unfair commercial practice. 

The present case deals with the introduction of new terms and conditions and their communication to the consumers. Further to several complaints submitted by consumers the Italian Competition Authority on 7 October 2010 decided to launch an investigation proceeding against the defendant, a mobile telecom operator.

According to complaints, the defendant introduced new terms and conditions for its mobile phone services, which could misguide consumers in relation to their tariffs. Pursuant to the new terms and conditions the chosen tariffs were changed after exceeding certain traffic thresholds. In fact, after exceeding these thresholds the defendant could apply a different tariff. For customers it was very difficult to control these thresholds.



 The defendant argued, that it used the right to modify the consumers' terms and conditions in case of a non-compliance with the traffic thresholds. According to the defendant, this right was used exceptionally, only for restricted and predetermined categories of consumers that had breached terms and conditions for at least three consecutive months.

The defendant however did not keep the data regarding the number of consumers who breached the above mentioned terms and conditions. Moreover, the defendant pointed out that it exercised its right only in case of repeated and frequent violations of its terms and conditions, generally tolerating exceeding of the threshold in a single month.

According to the defendant, consumers were notified about exceeding the thresholds via SMS message. In case consumers did not adjust their usage according to thresholds in following month, they were further notified with a SMS message at least 30 days in advance of the change in terms and conditions. A third SMS notification was finally sent at the time of a change of terms and conditions. These procedures were communicated to consumers on request and were available on defendant's website.

Regarding the instruments available to consumers to verify their traffic thresholds, the defendant pointed out that consumers increasingly used the monitoring systems available on defendant's website.

The Italian Competition Authority established that the concerned commercial practice was unfair.

According to the Authority the unfairness consisted in introducing new terms and conditions that made it difficult for consumers to control their tariffs.

The Authority found out, that the above mentioned change of tariff was based on several conditions: (i) the monthly traffic towards a single telecom operator that was different from the defendant; (ii) the ratio between the total outgoing calls and calls received; (iii) the monthly traffic towards telecom operators that were different from the defendant; and (iv) the monthly traffic in international roaming.

The investigation showed that the terms and conditions allowed the trader to change the consumers' tariffs on the basis of the exceeding of traffic thresholds, which were difficult for consumers to keep under control.

According to the Authority the control of conditions mentioned sub (i) and (iii) was very difficult considering the possibility to conserve the previous mobile phone number through Mobile Number Portability. That is to say, that by simply looking at dialed numbers, consumers could not foresee to which network they were calling.

The Authority rejected the defendant's arguments regarding the monitoring systems available on the defendant's web page. It was found inappropriate considering only the general informative nature of the concerned data.

Does unilaterally changing the applicable terms and conditions of a consumer contract in such a way that it is very difficult for an average consumer to calculate the new imposed tariff, constitute an unfair commercial practice?

URL: http://www.agcm.it/ricerca-avanzata/open/C12560D000291394/A83A0D011CCF7565C125785B0034BBFA.html

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 The Italian Competition Authority decided to fine the trader and it issued a cease-and-desist order regarding the criticized practices. The fine imposed for an unfair commercial practice was EUR 150.000.