Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8 Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 9

A telephone operator who provides his consumers with unsolicited paying services (such as Internet access) ancillary to a basic telephone subscription, infringes the prohibition on unfair commercial practices.

Further to the complaints of a consumer association and of several individual consumers, on 29 March 2011, the Italian Competition Authority (the plaintiff) decided to start investigation proceedings against the defendant, a telecom company.

The consumers complained that the default settings of the SIM cards for mobile phones provided also for answering services and Internet services. Therefore many consumers incurred unexpected costs because they used these services, which they did not request at the moment of the purchase of the SIM card. In particular, unexpected costs were incurred by the users of smart phones which have a permanent connection to Internet services.

The consumers complained also that they had not been properly informed that these services were active.

On 19 October 2011, the defendant offered commitments to address the concerns expressed by the plaintiff. However, the latter rejected the commitments because it held the conducts of the defendant to be a very serious infringement of the prohibition on unfair commercial practices. Moreover, according to the plaintiff, the unfair commercial practice affected a high number of consumers.

 

The Italian Competition Authority decided that the conduct of the defendant constitutes an unfair commercial practice, in particular with respect to the following elements:

- Aggressive commercial practices: the defendant was held to have significantly impaired the average consumer's freedom of choice with regard to the use and the payment of services that were not requested by the consumers at the moment of the purchase;

- Professional diligence: the defendant did not act in compliance with professional diligence required from a telecom operator which is subject to a very strict set of rules in relation to good faith and fairness.

 

Does a telephone operator who provides his consumers with unsolicited paying services (such as Internet access) ancillary to a basic telephone subscription, infringe the prohibition on unfair commercial practices?

URL: http://www.agcm.it/consumatore/consumatore-delibere/open/C12560D000291394/087FFB22C0D6BE53C12579CE002CB1A2.html

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The plaintiff, on the basis of the gravity and duration of the practice of the defendant, decided to fine the defendant and ordered it to cease the unfair behavior. The fine was increased because the defendant was a recidivist. The final amount of the fine was equal to € 300,000.00.