Case law

  • Case Details
    • National ID: A-292-552/2016
    • Member State: Lithuania
    • Common Name:link
    • Decision type: Administrative decision in appeal
    • Decision date: 14/03/2016
    • Court: Supreme Administrative Court of Lithuania
    • Subject:
    • Plaintiff: UAB “Natural Pharmaceuticals”
    • Defendant: Competition Council of the Republic of Lithuania
    • Keywords: advertising, black list, free, misleading price, pharmaceuticals, transaction decision, unfair commercial practices
  • Directive Articles
    Unfair Commercial Practices Directive, Annex I, 20.
  • Headnote
    The food supplements advertising, stating that food supplements are provided free of charge and the consumer must pay only packing and shipping costs, can be considered as an unfair commercial practice, if, packing and shipping costs paid by the consumer, in practice, also include other costs.
  • Facts
    The plaintiff both in its commercial offers and advertising on the internet disseminated the following statements (in Lithuanian): “Yes, we share FREE* 100 000 high quality Norwegian omega-3 fish oil units…”, “*You will need to pay packing and delivery expenses , which are 9,95 Lt”; <…> “All you need to do – to pay packing and delivery expenses, which are barely 9,95 Lt”, “ <…> “How to get a free omega-3 unit from Norway?”, “Yes – I wish to order 30 day omega-3 unit FOR FREE. I accept to pay packing and delivery expenses, which are 9,95 Lt”; “Try for 0, - Pay only packing and delivery expenses – 9,95 Lt”; “Yes, I wish to get trial unit of OmegaMarine Forte+. <…> I will pay only delivery and packing expenses, which are 9,95 Lt. <…>”.

    The defendant adopted a decision, in which it identified the above-mentioned statements as misleading advertising and imposed a fine on the plaintiff. The plaintiff disagreed with this decision and filed a claim to the court, requesting annulment of the defendant’s decision.
  • Legal issue
    The court stated that a product can be described as “gratis”, “free”, “without charge” or similar if the consumer had to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.

    In this case, according to the advertisement, the consumer had to pay packing and delivery expenses in order to get free food supplements. The court examined whether these packing and delivery costs, as advertised, indeed contained only unavoidable costs, allowed under Article 20 of Annex I of the Directive 2005/29/EC (implemented into Lithuanian law by Article 7(18) of the Law on Prohibition of Unfair Business-to-Consumer Commercial Practices).

    After examining the evidence, the court concluded that packing and delivery expenses in the amount of 9,95 Lt, as advertised, in practice, included not only packing and delivery costs, but also other costs – prices of the package and the envelope, invoicing expenses, administration expenses, customer service expenses and other costs. The court concluded that all such additional expenses are common business-operation expenses and cannot be considered as unavoidable expenses allowed under Article 20 of Annex I of the Directive 2005/29/EC (implemented into Lithuanian law by Article 7(18) of the Law on Prohibition of Unfair Business-to-Consumer Commercial Practices).

    Taking the above into consideration, the court confirmed that the plaintiff was engaged in unfair commercial practices.
  • Decision

    Can the food supplements advertising, stating that food supplements are provided free of charge and the consumer must pay only packing and shipping costs, be considered as an unfair commercial practice?

    URL: http://liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=b30b9215-95c9-44dd-977c-932aaef4321c

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result
    The court rejected the plaintiff’s claim.