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

Omitting to mention, in an advertisement, the conditions subject to which a certain advantage is granted, constitutes a misleading commercial practice.

Further to complaints of several consumers, on 5 November 2012, the Italian Competition Authority (the plaintiff) decided to start proceedings against the defendant, a postal company, with regard to an advertising campaign on a promotion for the bank account holder.

The defendant had advertised that it paid a 4% interest rate on the savings that the consumers held in their bank account.

However, in order to obtain the advertised interest rate the consumers had to meet several conditions. The existence of such conditions was not revealed in the advertising campaign.

These conditions were quite complex. They regarded the average amount of savings kept in the bank account during a certain period of time. The defendant furthermore did not provide the consumers with tools that allowed them to monitor the fulfillment of the above conditions.

During the proceedings the defendant argued that the plaintiff did not have jurisdiction on the case, as the competent authority was either the Italian Communication Authority or the Bank of Italy. The defendant further stated that it also granted the 4% interest rate to some consumers who only partially met the required conditions.

The plaintiff first stated that it has jurisdiction on the case, hence denied the competence of  the Italian Communication Authority because the case did not concern the sector of telecommunications. It also revoked the competence of the Bank of Italy because the financial regulations which are applied by this institute, do not implement the provisions of the UCP directive.

Next, the plaintiff held that omitting to inform the consumers, in the advertising campaign, about the conditions subject to which the 4% interest rate was granted and referring for this information to its website and to other documents, constituted a misleading commercial practice that was likely to deceive the consumers.

The plaintiff further held that the conditions that had to be met to obtain the 4% interest rate were quite difficult to be understood by the average consumer. Therefore, the trader did not comply with the requirements of professional diligence because it did not allow the consumers to monitor the fulfilment of the conditions.  

Does omitting to mention, in an advertisement, the conditions subject to which a certain advantage is granted, constitute a misleading commercial practice?

URL: http://www.agcm.it/consumatore/consumatore-delibere/open/C12560D000291394/D1FFFD9C3C50354BC1257B8E0041BA90.html

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On the basis of the gravity and duration of the practice the plaintiff fined the defendant and ordered it to cease the unfair behaviour. The fine was increased because the trader was a recidivist, but it was also reduced because of the actions taken by the trader to restore some consumers that only partially met the required conditions. The final amount of the fine was 250.000,00 €.