Case law

  • Case Details
    • National ID: PS9981 - Decision No. 25634
    • Member State: Italy
    • Common Name:Sky - Procedure di teleselling
    • Decision type: Other
    • Decision date: 30/09/2015
    • Court: Italian Competition Authority
    • Subject:
    • Plaintiff: Centro di ricerca e tutela dei consumatori e degli utenti
    • Defendant: Sky Italia S.r.l.
    • Keywords: complaints, durable medium, telecommunications operator, written confirmation
  • Directive Articles
    Consumer Rights Directive, Chapter 3, Article 8, 6. Consumer Rights Directive, Chapter 3, Article 8, 7.
  • Headnote
    In the context of distance contracts, anticipated by a telephone conversation, the automatic conclusion of the agreement without the confirmation of such offer by the trader and without the signing or explicit consent by the consumer (where agreed, even embedded in a durable medium) constitutes an unfair commercial practice since it is an infringement of Article 8, Paragraphs 6-7 of Directive 2011/83/EU on consumer rights.
  • Facts
    Following many complaints reported by an association of consumers, an investigative proceeding was opened against the defendant for the alleged infringement of Article 51, Paragraphs 6 and 7 of the Legislative Decree of 6 September 2005, No. 206 (the Italian Consumer Code) in relation to the teleselling procedure carried out by the defendant regarding the sale of its services.

    Such activity concerned the conclusion by telephone of distance contracts for satellite TV services. After the recording of a telephone conversation between an operator and the customer, the contracts were performed without the written confirm of such contractual offer, without the related signing of the contract or acceptance in writing by the consumer or where agreed, without the prior explicit consent embedded in a durable medium.
  • Legal issue
    The mentioned distance contracts fall within the scope of Article 51, Paragraph 6 of the Italian Consumer Code, even if there was a prior telephone conversation during which the contractual offer has been illustrated to the consumer and the consent has been acquired through such technical mean.

    Indeed, the ICA held that the contractual relationship is legitimately established only if the consent is expressed in writing or if such confirmation, once the trader has provided appropriate information in a clear and comprehensible manner and upon agreement with the consumer, is given on a durable medium.

    The simple request of consent to record the telephone conversation fails to comply with the requirements laid down by the above mentioned Article nor such recordings meet the concept of "durable medium" provided for by the Consumer Code.

    The ratio of this provision is to protect the consumer, in consideration of his/her limited negotiating power, from entering into a contractual relationship as a consequence of a mere oral declaration, regardless of the formal importance given to it by the defendant.
  • Decision

    Does the automatic conclusion of the agreement, anticipated by a telephone conversation and without the trader's confirmation of such contractual offer as well as without the signing or explicit consent by the consumer, constitute an unfair commercial practice and, therefore, such type of conduct has to be terminated and sanctioned?

    URL: http://www.agcm.it/consumatore--delibere/consumatore-provvedimenti/open/C12560D000291394/387CB8552070E656C1257ED600507C42.html

    Full text: Full text

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  • Result
    On the basis of the gravity and duration of the practice, the ICA held that the defendant's conduct constituted an infringement of Article 8, Paragraphs 6-7 of Directive 2011/83/EU and ordered the defendant to cease the unfair commercial practice and sanctioned Sky Italia S.r.l., in consideration of its financial difficulties, with a fine of € 100,000.00.