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Case Details

Case Details
National ID A858-370/2012
Valstybė narė Lietuva
Common Name A858-370/2012
Decision type Court decision in appeal
Decision date 16/03/2013
Teismas Lietuvos vyriausiasis administracinis teismas
Tema
Ieškovas UAB „Omnitel“
Atsakovas Competition Council
Raktažodžiai black list, discounts, free, misleading omissions, price, price information

Unfair Commercial Practices Directive, Annex I, 20.

Advertising services as free of charge, whereas the applicable terms and conditions state that certain fees will apply, constitutes an unfair commercial practice.
The defendant, the Competition Council, had imposed a fine on the plaintiff for the advertisement “Zero cents <...> in Omnitel network”, claiming that the service would be free of charge.

This fine was imposed by the plaintiff due to the fact that consumers had to choose one out of three payment plans in order to use the free services of the plaintiff.

Moreover, in all cases consumers had to pay the plaintiff at least a subscription fee. Consequently, there was no possibility to use the services of the plaintiff without paying any costs or charges.

The plaintiff appealed to the decision of the plaintiff with the court, stating that consumers were informed that additional terms would apply.  
Does advertising services as free of charge, whereas the applicable terms and conditions state that certain fees will apply, constitute an unfair commercial practice?  
The court stated that the advertisement of the plaintiff constitutes an unfair commercial practice because the service is described as free despite the fact that the consumer has to pay for the right to use such service.

Such practice is prohibited by article 7 (18) of the Law on Prohibition of Unfair Business-To-Consumer Commercial Practices as a misleading commercial practice.

According to the court, in this case it is sufficient to establish that the advertisement includes a description of a product as "free" or similar and the consumer has to pay anything other than the unavoidable cost of responding to the offer and collecting or paying for delivery of the item, in order to establish a presumption that consumer’s economical behaviours was distorted.

According to the court, the plaintiff had provided no evidence that applicable fees constitute unavoidable cost of responding to the offer.

The advertisement was considered misleading despite the fact that consumers where informed about the fact that additional terms were applicable.  
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The plaintiff’s request was denied.