• Dane sprawy
    • Identyfikator krajowy: VI ACa 1126/14
    • Państwo członkowskie: Polska
    • Nazwa zwyczajowa:N/A
    • Rodzaj decyzji: Orzeczenie sądu w postępowaniu odwoławczym
    • Data decyzji: 18/06/2015
    • Sąd: Sąd Apelacyjny w Warszawie
    • Temat:
    • Powód/powódka: (...) Spółka Akcyjna with its registered office in W.
    • Pozwany/Pozwana: President of the Office of Competition and Consumer Protection
    • Słowa kluczowe: administrative authority, advertisement, average consumer, misleading advertising, mobile phone services
  • Artykuły dyrektywy
    Unfair Commercial Practices Directive, Whereas, (18) Unfair Commercial Practices Directive, Annex I, 31., -
  • Uwaga główna
    "Typical consumer" is a legal term. The definition of a typical consumer does not refer to specific terminology and knowledge, which is not available to the court. It refers to terms that are commonly known as a life knowledge and experience.
  • Fakty
    The plaintiff questioned the decision of the President of the Office Competition and Consumer Protection (OCCP).

    The President of the OCCP imposed administrative sanctions on the plaintiff, an entity conducting economic activity in the telecommunications sector. The plaintiff offered a game for mobile telephones, which was advertised by way of an SMS sent to clients and information in newspapers.

    The advertisements included the phrase “FREE OF CHARGE”. In order to play the game, the plaintiff's clients had to send an SMS to a special number. However, in reality, playing the game was not free of charge. Only the first SMS, i.e. a declaration of will to download the game, was free of charge. A user who wanted to play the full version of the game had to pay an additional sum of money that was not mentioned in the advertisements.

    In his decision, the President of the OCCP ruled that this type of practice by the plaintiff misleads consumers and may be perceived as infringing collective consumer interests.

    The plaintiff appealed to the the Court of the Competition and Consumer Protection in Warsaw, arguing that the President of the OCCP interpreted the definition of “typical consumer” incorrectly. In the plaintiff’s opinion, its offer was directed to technologically advanced users, who know the services dedicated to the mobile phones.

    The Court of the Competition and Consumer Protection in Warsawupheld the decision of the President of the OCCP and the plaintiff subsequently appealed to the Court of Appeal.
  • Zagadnienie prawne
    Can the court modify the definition of "typical consumer" on the grounds of a specific case? What are the terms to which this definition refers?
  • Decyzja

    In its judgment, the court focused on the definition of "typical consumer".

    In the court’s opinion, the plaintiff’s advertisements were directed to an indefinite group of consumers. It was not proven that they were addressed to a specific type of client with characteristic features and knowledge. The court pointed out that the advertisements were placed in different media with a wide readership.

    The judgment also pointed out that it cannot be required, that typical consumer will verify information received in the advertisement with the rules of the game. In fact, the plaintiff provided its clients with true information but did so in a misleading way. A typical consumer who received an advertisement with the phrase “FREE OF CHARGE” could assume that it did not concern only the SMS for downloading the game, but also playing it. The court ruled that the way of presenting the information was ambiguous and could be misleading for consumers.

    The court did not assess some additional evidences requested by the plaintiff and emphasized that the legal definition of "typical consumer" is included in the Act on Combating Unfair Commercial Practices of 23 August 2007. The court took into account that the definition of "typical consumer" does not refer to the specific terminology and knowledge, which is not available to the court. This definition refers to terms that which are commonly known as a life knowledge and experience. In the opinion of the Court of Appeal, the court of the first instance properly assessed the evidence, in accordance with the rules of logic and experience. In consequence, the court dismissed the plaintiff's appeal and the punishment was upheld.

    URL: http://orzeczenia.waw.sa.gov.pl/content/$N/154500000003003_VI_ACa_001126_2014_Uz_2015-07-21_001

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  • Wynik
    The court dismissed the plaintiff's claim.