Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8

(1) Changing the availability of an offer on the basis of the discretional decision of a trader, based only on its convenience, constitutes an unfair commercial practice.

(2) Not mentioning fees, that are inherent to the service offered and charged automatically, constitutes an unfair commercial practice.

(3) Only providing a paying phone number to consumers, in order for such consumers to understand their rights under a contract, constitutes an unfair commercial practice.

(4) Omitting to mention material information in the consumer's language, constitutes an unfair commercial practice.

(5) Not informing the consumer on applicable fees in order to change a product acquired from the trader, may under certain conditions constitute an aggressive commercial practice.

 

Following several claims reported by consumers, on 30 September 2010, the Italian Competition Authority decided to launch an investigation against Ryanair Ltd. More in particular, according to consumer complaints, the trader:

(i) advertised (by using internet and press) purchase conditions relating to its products which were not effectively available;

(ii) through its internet website (www.ryanair.com/it), offered its services omitting to mention the following additional costs:

• A fee applied in case of web check-in;

• A fee applied in case of payment by credit card;

• VAT concerning domestic flights.

(iii) provided a pay-phone number in order to request the refund of tickets which the consumer had not used due to defendant's actions and it did not provide clear information concerning the refund of taxes in relation to such unused tickets;

(iv) published only in English on its web site - www.ryanair.com/it - the General Conditions of Carriage for Passengers and baggage dedicated to Italian consumers and it requested them to preferably use English in order to send communications destined to the trader;

(v) requested additional fees in order to change the essential data of a ticket (e.g. name, date, time, sector) and to reissue the related booking pass.

On 16 February 2011, the Italian Competition Authority rejected commitments offered by the trader in order to correct the anti-competitive conducts subject of the investigation.

Based on the evidence gathered in the course of the investigations, the Italian Competition Authority ascertained that the commercial practices sub (i), (ii), (iii), (iv) and (v) are unfair because they are contrary to the requirements of professional diligence and they are of such a nature that they can deceive consumers in relation to the main characteristics and prices of its services or because they omit material information which the average consumer needs to possess in order to take an informed transactional decision.

The practices under discussion concerned both essential and accessory contractual elements (e.g. price and after sales services) and all phases of contractual relationship.

(1) Sub (i) (i.e. advertising purchase conditions which were not realistic) the Italian Competition Authority found that the methods used by the trader in order to advertise its promotional offers were infringing the requested diligence because of the following reasons:

• the Italian Competition Authority ascertained that the consumer was induced to believe by the advertisement that the advertisement related to tickets sold only in the relevant country (in this case, Italy) whilst in reality the advertisement referred to tickets sold in all European countries in which the trader operates;

• in addition, the Italian Competition Authority ascertained that the number of seats under discussion were changed daily under discretional decision of the trader and that the booking system did not allow consumers to directly go to the web page dedicated to the offers under discussion and to monitor the depletion of them.

(2) With reference to (ii) (i.e. the omission to mention certain fees and VAT), the Italian Competition Authority found that the ticket price that was quoted at the beginning of the booking and online purchase process, did not include some additional and facultative supplements which the trader normally charged the consumer with. More in particular, it was established that a fee on web check-in and a credit card surcharge were added automatically to the tariff that was initially displayed. Such supplements did not relate to a service different and/or additional to that of the passenger’s transportation service so that they were necessary cost components of the service offered by the trader and, as such, they could not be separated from the airline ticket price. In the Italian Competition Authority's view, the information about the existence and amount of the supplements under discussion were not provided in an appropriate way to make the consumer aware of the service price offered before the time the online booking was processed.

In addition, the Italian Competition Authority found that all fees concerning optional services related to domestic Italian flights were indicated excluding VAT.

(3) Sub (iii) (i.e. the pay-phone and refund practices for unused tickets due to the defendant), it was established that the trader did not provide clear and full information concerning the right to refund the prices concerning flights annulled by the trader. According to the Authority, the consumer was given only one way to receive full information, i.e. dialling (and paying for) a telephone number.

With reference to the right of the consumer to be refunded for taxes on flights unused due to the defendant, the Authority found that on the website of the trader there was no information concerning the related procedure and that the only way to contact the trader was by the above mentioned pay-phone number. In addition, no documents related to the trader's services indicated the amount of the fee requested in order to start the related procedure.

In the Authority's view, the right to be refunded for tickets unused, due to the defendant, need be exercised without additional burdens.

(4) Sub (iv) (i.e. the use of language on the website), the Italian Competition Authority stated that the trader published the General Conditions of Carriage for Passengers and baggage on its website only in English, although the information was aimed at Italian consumers. The Authority reminded that the trader cannot omit material information that the average consumer needs to have in order to take an informed transactional decision.

(5) Finally, with reference to the practice sub (v) (i.e. charging additional fees in order to change the essential data of a ticket), it was found that in some cases, during the data change process, the trader proposed to the consumer a tariff which was higher than the one available. In addition, on the basis of the evidence gathered in the course of the investigations, it was ascertained that in some cases, in order to reissue the booking pass, the handling company operating on behalf of the defendant requested the consumer to pay some additional costs at the boarding gate, which were not provided by the Table of fees nor by the Terms&Conditions.

In the Authority's view, imposing additional fees not provided for in the documentation, and this on pain of missing the flight, in reality obliges the average consumer to take a transactional decision where he would not have taken that decision otherwise.

(1) Does changing the availability of an offer on the basis of the discretional decision of a trader, based only on its convenience, constitute an unfair commercial practice?

(2) Does not mentioning fees, that are inherent to the service offered and charged automatically, constitute an unfair commercial practice?

(3) Does only providing a paying phone number to consumers, in order for such consumers to understand their rights under a contract, constitute an unfair commercial practice?

(4) Does omitting to mention material information in the consumer's language, constitute an unfair commercial practice?

(5) Does not informing the consumer on applicable fees in order to change a product acquired from the trader, constitute an aggressive commercial practice?

URL: http://www.agcm.it/ricerca-avanzata/open/C12560D000291394/896F445ABC836ADEC12578C4004FD0B7.html

Full text: Full text

No results available

No results available

On the basis of the gravity and duration of the practices, the Italian Competition Authority decided to impose five distinct fines on Ryanair Ltd totalling 502.500 €, and ordered it to cease the unfair behaviors under discussion.