The ICA, taking into account that the defendant's conduct was carried out in the field of the conclusion of electricity and natural gas supply contracts in the free market, held that the consumers have to be considered as operating in a condition of "limited rationality" in such context, this because of the situation of information asymmetry and inherent complexity of commercial offers, from which the defendant has took advantage.
Indeed the modality and the procedure adopted by the defendant to contact the consumers were capable to take advantage from this condition of vulnerability by means of several factors like: the element of surprise which makes the consumer unprepared to "face" the trader; the difficulty to immediately understand the content of the contractual offer; the impossibility to compare such proposal with a similar one and the psychological pressure to conclude the contract.
It emerged that the defendant did not adopt an adequate procedure to verify the consumer's will to undersign the contract and, moreover, it resulted that the agents and call center operators put in place a series of inducement mechanisms in order to gain the consumer's favor and to convince him/her about the convenience of such offer. Such consent has to be considered as viciuous and this reflects the unsolicited nature of the electricity and natural gas supply contracts.
The ICA held it is necessary that the trader provides the consumer with a proper and full set of information, complying with the provisions which set out the information requirements in order to make consumers aware of the contractual obligations and offering an adequate system to register the confirmation by the counterparty
Furthermore the Court, in relation to the defendant's request for payment in connection with unsolicited supplies, stated that benefitting of such services did not authorize the trader to expect the consumers to pay the related costs.
Testo integrale: Testo integrale