Case law

  • Case Details
    • National ID: /
    • Member State: Greece
    • Common Name:Ombudsman of the Consumer, 1st June 2010 (Protocol No : 1192)
    • Decision type: Other
    • Decision date: 01/06/2010
    • Court: Ombudsman of the Consumer
    • Subject:
    • Plaintiff: Consumers
    • Keywords: aggressive commercial practices, misleading commercial practices, precontractual information
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5, 2. Unfair Commercial Practices Directive, Chapter 2, Article 5, 4. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8 Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 9
  • Headnote
    The practice of a private maternity clinic to charge parents for the collection of blastocytes constitutes an agressive commercial practice, as it influences the consumer’s freedom of choice during the transactional decision.
  • Facts
    Several consumers submitted reports to the Ombudsman of the Consumer regarding the charges imposed by private maternity clinics for the collection of blastocytes after the birth, with the purpose of them being put in a special packaging and then being delivered in either a private or public bank of care.

    The consumers complained about irregular pre-contractual information regarding these charges. They also mentioned that the procedure of collecting blastocytes is completed by the doctor or the obstetric nurse without the intervention of any employee of the clinic. They also complained that this charge was imposed even in cases where the blastocytes were collected with the purpose of their donation to the public bank of care of the Academy of Athens.

    The private maternity clinics argued that the patient entered the hospital after previous communication with the doctor and after being informed about the charges imposed. The procedure of collecting blastocytes takes place at a specially organised unit of the clinic by an external or a partner doctor, while the blood is maintained at the premises of the clinic until it is received by the company that will take care of it. The clinics characterised this action as a separate medical action that is not part of the procedure of parturition. They also mentioned that the purpose of the material collection does not influence the forming of the price list.

    The parties were called by the authority to reach a settlement at its premises. However, the settlement was not reached.
  • Legal issue
    (1) The collection of blastocytes is an action that follows the birth, and is not an independent action. Also, the collection and maintenance of blastocytes was promoted by all implicated parties (maternity clinics, doctors, maintenance banks) and this, along with the emotional burden imposed on the parents at the time of the birth of their children, cultivated the conditions for an aggressive commercial practice. Taking into account the circumstances under which the parents were obliged to take their decision to accept or to refuse the charges imposed, it was held that their freedom of choice was essentially impaired (or it was likely to be severely impaired), thus causing damage to their financial interests.

    (2) In the past, the collection of the omphalion blood was not charged additionally. So, public modern methods should not be considered either as a subject for additional negotiations that trigger extra charges. Moreover, the fact that the clinic may face the possibility to compensate the consumer in case of a faulty collection of blastocytes cannot justify the additional charges imposed.

    The practice of the maternity clinics to influence the freedom of choice of the consumers during their transactional decision as to accept or refuse the additional charges, therefore constitutes a misleading practice. Creating obstacles to altruistic actions (such as the donation of blastocytes) by imposing additional charges is contrary to professional diligence that an institution of medical services should show, even if it functions based on financial criteria.
  • Decision

    (1)  Does the practice conducted by the maternity clinics regarding the parents' (non) acceptance of the charges, qualify as an aggressive commercial practice?

    (2) Can the hospital justify the additional charges on the basis of increased costs? 

    Full text: Full text

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  • Result
    The Ombudsman of the Consumer concluded that the additional charges for the collection of the blastocytes of the omphalion blood constitutes an infringement of articles no 2,8, 9a (A 12 of the law no 3587/2007) of Greek law no 2251/1994.

    The Ombudsman of the Consumer recommended the maternity clinics to give back the money for the charges that had already been paid, and to refrain from charging similar costs relating to the collection of blastocytes of the omphalion blood in the future.

    It also called the maternity clinics to inform in writing, within ten days from the reception of the present recommendation, whether they accept it or not.

    Finally, the Ombudsman stipulated that in case that the recommendation was not accepted by maternity clinics, it would act according to art. 4 par.5 of the law no 3297/2004. (Note: this provision stipulates the following: "The Ombudsman of the Consumer and the committees propose an amicable settlement of the dispute, attempting to reach a compromise between the implicated parties. If the compromise is reached, the minutes of the compromise are drafted by the Ombudsman of the Consumer or the President of the relevant committee of the amicable settlement. The minutes are signed by the implicated parties or by their legal representatives and function as judicial settlement. If the settlement is not reached, the Ombudsman of the Consumer proceeds to drafting a written recommendation addressed to both parties, in order to resolve the dispute. In case that one of the implicated parties does not accept what is included the Authority’s written recommendation, the Ombudsman of the Consumer can publish the fact by appropriately notifying his conclusion.")