Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (a)

Invitations to prize competitions should clearly indicate the essential conditions of participation; the mere referral to a regulation available to consumers at the point of sale is not sufficient.

Following investigations launched in October 2008, the Italian Competition Authority fined the plaintiff for 100.000 Euro, for having committed unfair commercial practices consisting in the misleading invitation to consumers through radio broadcasting and advertisement brochures, to participate in a prize competition. More specifically, the Italian Competition Authority found that the promotional advertisements incorrectly indicated that, by acquiring any products offered at the point of sale of plaintiff, consumers could win a prize amounting to five times the value of the product purchased.

On appeal, the Administrative Court of first instance confirmed the Italian Competition Authority's decision.

The plaintiff subsequently lodged an appeal before the Supreme Administrative Court ("Council of State" or "Consiglio di Stato") in order to obtain the annulment of the Administrative Court of first instance's decision, and this based on the following argument: (i) violation of procedural rights and guarantees, and (ii) failure by the Authority to take into account that consumers had full possibility to obtain complete and accurate information on the conditions applicable to the prize competition, this by reading the "Competition Terms and Conditions" available to consumers at each point of sale. 

 

The court first affirmed that advertisements omitting relevant information have a misleading nature, notwithstanding the possibility for consumers to obtain essential information by visiting the points of sale where a specific regulation is available for them to read. Subsequently, the average consumer cannot be required to make up for the lack of information provided by the trader by visiting the points of sale. Finally, the court held, to assess whether an advertisement is misleading, it is sufficient to evaluate the potential damages to consumers, while the actual distortion of the possibility to take an informed transactional decision is not a decisive element.

To what extent an invitation to participate to a price competition can make reference to an additional document integrating the information advertised, available at the trader's point of sale?

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Based on the above considerations, in its decision of 20 July 2011, the court rejected the appeal.