Case law

  • Case Details
    • National ID: 2015, ECLI:NL:CBB:2015:285
    • Member State: Netherlands
    • Common Name:link
    • Decision type: Other
    • Decision date: 25/08/2015
    • Court: Trade and Industry Appeals Tribunal
    • Subject:
    • Plaintiff: ACM
    • Defendant: Unknown
    • Keywords: administrative actions, misleading commercial practices, misleading omissions, unambiguous
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 1, Article 2, (h) Unfair Commercial Practices Directive, link
  • Headnote
    (1) A subscription service is misleading if essential information is provided only when a consumer scrolls down on a webpage.
    (2) Television advertisements are misleading when the information provided is not all of the information that is needed for complete and full usage of the service.
  • Facts
    Plaintiff (1) is one of the biggest SMS services providers with content items, such as ringtones, games and wallpapers. An agreement with consumers is concluded through mobile phone via SMS. ACM (Dutch supervisory authority) - who is also plaintiff (2) in this appelate court procedure - has received many complaints form consumers about entering into an SMS agreement with Plaintiff unwillingly. ACM conducted a research into the practices of this provider. On the basis of this research and the report drafted accordingly, the ACM fined the SMS service provider. Both the SMS service provider and ACM are now disputing the first instance court decision, in which three of the eight fines were moderated/reduced by the court.
  • Legal issue
    (1) The court considered it likely that a consumer who clicks on the expression mentioned on the internet, will not click with the incentive to enter into an SMS agreement. The incentive is to do a test which the advertisement showed. Additionally, in these cases clear information is essential, as consumers often hastily take note of the information provided on the screen.
    (2) Directive 2005/29/EG defines professional diligence as a standard of special skills and care which a trader may reasonably be expected to exercise towards consumers, in line with honest market practices and/or the general principle of good faith in the trader's field of activity. If, in a certain sector or industry, a code of conduct is drafted for the "normal market practice", then this code can be used as reference for determining that certain commercial practices are not in line with the professional diligence. As the information provided by the SMS service provider is incomplete, it is contrary to what the code of conduct prescribes and therefore not in line with article 2 subsection h of Directive 2005/29/EG (implemented into Dutch law by art. 6:193a section 1, subsection f of the Dutch Civil Code).
  • Decision

    (1) Are subscription services misleading when essential information is only provided on a webpage when a consumer scrolls down?
    (2) Are television advertisements misleading when not all information is provided for complete and full usage of the service?


    Full text: Full text

  • Related Cases

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  • Legal Literature

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  • Result
    The court discards the first instance court's judgement and the plaintiff's requests are granted concerning the above legal matters.