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Case Details

Case Details
National ID Decision no. RPZ 46/2012
Państwo członkowskie Polska
Common Name Decision no. RPZ 46/2012
Decision type Administrative decision, first degree
Decision date 28/12/2012
Sąd Urząd Ochrony Konkurencji i Konsumentów, Delegatura w Poznaniu
Temat
Powód/powódka The President of the Office of Competition and Consumer Protection
Pozwany/Pozwana PKO BP S.A. with its registered office in Warsaw
Słowa kluczowe advertisement, average consumer, financial services, limited availability, misleading commercial practices

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

It is an unfair commercial practice to advertise a product in such a way, that taking into account the size of the font used in the advertisement, advertisement's exposure time, its position and length, it creates a false impression of a widespread availability of the products on an ordinary consumer.
The defendant is one of the main Polish banks, offering a number of financial services and products to consumers. The President of the Office for Competition and Consumer Protection initiated the proceedings as a result of a national monitoring action in relation to financial services and products. The proceedings related, among others, to the unfair advertisement procedures used by banks.

The object of the proceedings was, among other things, the advertising campaign "Huge loan, little installment" ("Max pożyczka, mini ratka") of the defendant, which appeared on multiple media platforms, including television, radio, press, billboards leaflets and Internet.

The campaign contained such statements as "PLN 24,50 monthly installment for each PLN 1000 of a loan" and "PLN 26 monthly installment for each PLN 1000 of a loan".

This created an impression that the conditions mentioned in the slogans applied to all consumers who wanted to apply for the loan.

In reality, the loan was not available to a wider group of consumers on the abovementioned conditions, but only to persons who were already customers of the defendant, having held an account with the defendant for at least 6 months at the time of the campaign, had regular deposits to their bank account and had not exceeded the allowed overdraft limit during that period. Consumers who did not fulfill those conditions could still obtain the loan in question, but the applicable rates were much less favorable.

Information regarding this specific conditions which enabled consumers to apply for the loan as indicated in the main text of the advertisement was presented in the advertisements, but was not clearly visible due to the small font size, short time of exposure, side position and short length.  
Is it an unfair commercial practice to, while not concealing significant information from the consumer, display it in a way which is not clear to him and may therefore be misleading (by, for instance, using smaller font, placing some part of information outside the main area of the advertisement)?
The President of the Office of Competition and Consumer Protection disagreed with the defendant, who argued that the profile of the consumer at whom the advertising campaign was directed did not match the characteristics of an "average consumer". In his opinion a loan was a product which was normally addressed at a wide range of persons, and unlike, for example, an investment fund, did not require extensive knowledge in the field of finance.

Moreover, the President of the Office of Competition and Consumer Protection rejected the defendant's argument who invoked the fact that since the advertisements like the one challenged in this case have been present in practice of the defendant, as well as any other traders, since the Act on Unfair Commercial Practices entered into force and thus, it has become commonly accepted to use advertisements having characteristics like the one challenged.

The advertisement was held to be unclear to an average consumer, who could obtain a false impression of a widespread availability of the loan on the advertised conditions, while in fact the availability was limited. For instance, the TV commercials were 15, 30 and 45 seconds long, but the information regarding the abovementioned conditions appeared only for 4 seconds. The advertisements published in the newspapers included information on the conditions to be met by the consumers in order to obtain the loan on the conditions mentioned in the advertisement in a small font and the bottom side of the advertisement.

Moreover, the manner in which the information was presented made it difficult for consumers to acquaint themselves with the conditions, even if they were more wary than the standard "average consumer". This was also the case with other media platforms used throughout the advertising campaign. Additionally, the use of several media platforms meant that the campaign had a large consumer outreach.
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The commercial practice was found to be unfair.

The President confirmed that the defendant had already stopped using the contested practice.

The President imposed on the defendant a financial penalty paid to the state budget, in the amount of PLN 2,844,558.