Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (d) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (c) Unfair Commercial Practices Directive, Annex I, 6.

 (1) Advertising a commercial offer, when in fact this offer is nonexistent and a different offer is presented at the conclusion of a contract, constitutes a misleading commercial practice.

(2) The practice of selecting the applicability of a service by default during an order process, hence obliging the consumer to opt-out in the event he does not want to enjoy this service, constitutes a misleading commercial practice.

Following several complaints reported by consumers the Italian Competition Authority on 1 June 2010 decided to launch an investigation proceeding against the defendant (an online travel agency).



According to complaints:

(i) the trader indicated on its web page the availability of flights, hotels and tourist offers that were nonexistent;

 (ii) the trader included an optional insurance policy ("Opodo all-Inclusive") which was already selected by default.



The defendant argued, that the above-mentioned practices were not misleading or unfair. The defendant pointed out that it offered to reimburse consumers who submitted a report to the Italian Competition Authority.

The Italian Competition Authority considered two distinct unfair commercial practices.

(1) According to the Authority, between 2008 and 2010 the trader advertised its services online indicating on its website several lucrative but incomplete or non-existent offers.

In fact, only at the moment of booking a consumer would know the final price of the advertised service.

The investigation revealed that on the defendant's website a particular price ("as from") was advertised, while at the end of the booking process, often a higher price was indicated.

Additionally, the Authority found that the defendant omitted relevant information regarding some costs, which were revealed only at the end of the booking process, or in some cases, not explained at all (e.g. credit card costs, agency fee).

The authority emphasised that, according to its established case law, the price indicated by a trader should include, from the beginning, every economic burden imposed on consumer and relating offers must allow an immediate and clear perception of terms and conditions of the offer.

 

(2) The Authority further found another unfair commercial practice.

The trader offered an optional insurance policy, "Opodo all-Inclusive", which was selected by default during the booking process (i.e., consumers had to opt-out).

In this way an additional service was activated without the express consent of a consumer. Consumers were required to expressly state that they were not interested in purchasing this optional service.

The Authority found this kind of selection misleading because it deceived consumers regarding the nature (voluntary or mandatory) of the concerned service.

1) Does advertising a commercial offer, when in fact this offer is nonexistent and a different offer is presented at the conclusion of a contract, constitute a misleading commercial practice?

2) Does the practice of selecting the applicability of a service by default during an order process, hence obliging the consumer to opt-out in the event he does not want to enjoy this service, constitute a misleading commercial practice?

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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.