Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b)

(1) A trader who provides misleading information about its ability to supply the products he offers, and who fails to reimburse the price of the undelivered products, infringes the prohibition on unfair commercial practices.

(2) It is against the requirements of professional diligence to impose product guarantee terms and conditions which are not compliant with mandatory provisions on consumers good guarantees.  

On 15 February 2012, the Italian Competition Authority (the plaintiff) initiated proceedings against the defendant, a company which operated a retail sales business online.

Several consumers had complained that they neither received the products they had purchased from the trader, nor obtained the reimbursement of the price of the non-delivered products. 

The plaintiff ascertained that the trader consciously offered on his website products that he could not supply to the consumers.

It was also ascertained that the terms and the conditions of the guarantee on the conformity of the products provided by the defendant were contrary to the mandatory provisions on the guarantee on consumer goods stated by the law.  

The plaintiff ascertained two different unfair commercial practices perpetrated by the trader.

First, the plaintiff held that the defendant provided false information to the consumers who were induced into believing that they would have received the ordered products or the reimbursement of the paid price. This false information caused the consumers to take a transactional decision which they would not have taken otherwise. The failure to refund the price paid for the undelivered products was likely to deceive the consumers on the protection of their rights.

Further, the non-compliance of the guarantee on the conformity of the products provided by the defendant, with the mandatory provisions on the guarantee on consumer goods stated by the law was held by the plaintiff to be contrary to the requirements of professional diligence.

(1) Does a trader who provides misleading information about its ability to supply the products he offers, and fails to reimburse the price of the undelivered products, infringe the prohibition on unfair commercial practices?

(2) Is it against the requirements of professional diligence to impose product guarantee terms and conditions which are not compliant with mandatory provisions on consumers good guarantees?  

URL: http://www.agcm.it/consumatore/consumatore-delibere/open/C12560D000291394/C4F13685832E6299C1257A4C004EB59A.html

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The Italian Competition Authority imposed on the trader two fines:

1. € 250.000,00 for the misleading information provided to the consumers and for the failure to refund the price paid for the products which had not been delivered.

2. € 20.000,00 for the guarantee not compliant with the mandatory provisions on the guarantee on consumer goods.