Case law

  • Case Details
    • National ID: Case PS9815 - Decision No. 25698
    • Member State: Italy
    • Common Name:Acea Energia - Attivazioni non richieste
    • Decision type: Other
    • Decision date: 04/11/2015
    • Court: Italian Competition Authority
    • Subject:
    • Plaintiff: Adiconsum Toscana
    • Defendant: Acea Energia S.p.A.
    • Keywords: aggressive commercial practices, distance contracting, information requirements, informed decision, off-premises contract, right of withdrawal, undue influence, unsolicited goods
  • Directive Articles
    Consumer Rights Directive, Chapter 3, Article 6, 1., (h) Consumer Rights Directive, Chapter 3, Article 8, 6. Consumer Rights Directive, Chapter 3, Article 8, 7. Consumer Rights Directive, Chapter 3, Article 9
  • Headnote
    The automatic activation of an additional service without customers' explicit opt-in consent and the related automatic charge of the cost and the refusal to reimburse customers constitutes an aggressive and unfair commercial practice since it is an infringement of Articles 6, Paragraph 1, lit h); 8, Paragraphs 6-7 and 9 of of Directive 2011/83/EU on consumer rights, as well as of the provisions which set out the prohibition to carry out unfair commercial practices since such conduct had to be considered as deceptive, aggressive and characterized by misleading omissions and undue influence put in place by the defendant.
  • Facts
    During 2013 and 2014 the ICA received a steady flow of complaints against many energy retailers. Consumers complained about finding out to have been switched to a new supplier through welcome letters or unexpected bills sent to them by the new supplier, without having given their consent to the switching - sometimes even without having been contacted by the supplier's agents.

    Therefore, the ICA launched seven proceedings aimed at investigating commercial practices carried out to acquire new customers by electricity and natural gas retailers of different sizes through distance and off-premises contracts. The seven proceedings investigated two possible kinds of infringements of the Consumer Code: (a) aggressive commercial practices in the acquisition of new customer, including requiring a payment for unsolicited supplies, and (b) violation of the formal requirements set by the Consumer Code for off-premises and distance contracts. Therefore, the proceedings intended to offer a first indication of how the Consumers Rights Directive should be applied in Italy with reference to distance contracts concluded in the energy sector.
  • Legal issue
    The ICA resolved that the commercial practices adopted by traders in the acquisition of new contracts were contrary to the requirements of professional diligence and were likely to lead to unsolicited contracts due to absent or flawed consent. In fact, the specific features of the procedures used and the circumstances in which the contacts occurred - taking into account consumers’ limited rationality and the complexity of commercial offers in the energy sector - may exert an undue influence capable of significantly impairing the average consumer’s freedom to choose or act with regard to the product. This may therefore lead or is likely to lead consumers to make a transactional decision that would not have been made otherwise. Therefore, they were considered unfair commercial practices.
  • Decision

    Does the automatic activation of an additional service without customers' explicit opt-in consent and the related automatic charge of the cost and the refusal to reimburse customers constitutes an unfair commercial practice and, therefore, such type of conduct has to be terminated and sanctioned?


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  • Result
    All the proceedings were closed with fines amounting to more than six million Euros. The ICA did not accept commitments offered by five traders, because the alleged unfair commercial practices involved conducts included in the blacklist of aggressive commercial practices and because of the ICA’s interest in assessing whether the practices breached the Consumer Code.

    Since almost all retailers decided to implement spontaneously the measures submitted as commitments; the ICA took into account their good will and reduced fines proportionately to the expected ability to mitigate the extent of unsolicited supplies.