Judikatūra

Injunctions Directive, Article 2, 1., (a)

The prohibition to impose double penalties is not breached in situation, where a supervising authority first imposes interim measures and then adopts a final decision.

The plaintiff, who is a mobile telecommunications operator in Latvia, held an advertising campaign, where the text of the advertisements invited first grade pupils to get a mobile phone “for free”. Since the advertising campaign was aimed at children and it entailed that after receiving a mobile phone, a consumer would be obliged to pay a monthly subscription fee to the plaintiff, the defendant considered that such action constitutes a violation of the unlawful commercial practice prohibition and adopted an interim decision requesting the plaintiff to cease the unfair commercial practice and remove all such advertisements. After the plaintiff did not comply with the request to remove all the unlawful advertisements, the defendant imposed a fine on the plaintiff in the amount of LVL 7000.00 (approx. EUR 9960). The plaintiff argued that the defendant has breached the prohibition to impose repeated sanctions for the same violation (i.e. prohibition of double penalties).

Is the prohibition to impose double penalties breached in a situation where a supervising authority first imposes interim measures and then adopts a final decision?

The court determined that indeed the advertising campaign conducted by the defendant breaches the prohibition to advertise a product or service as free of charge, if a consumer in the end is required to pay additional fees, as stipulated by Article 11(20) of the Unfair Commercial Practice Prohibition Law (UCPPL) (Article 20 of Annex I of the Directive 2005/29/EC). The court also agreed to the arguments put forward by the defendant that the prohibition to impose a double penalty has not been breached. Namely, the court agreed that the UCPPL authorizes the defendant to adopt interim measures provided in Article 15(8)(2) and 15(8)(3) of the UCPPL (implementing Article 2(1)(a) of the Directive 2009/22/EC). Such interim measures are not final and pursuant to the UCPPL an interim measure is in force until a final decision of the supervising authority comes in force.

URL: https://manas.tiesas.lv/eTiesasMvc/nolemumi/pdf/131360.pdf

Pilns teksts: Pilns teksts

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The court upheld the judgement of the court of the previous instance and dismissed the plaintiff’s request to revoke the defendant’s decision.