Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b)

It does not automatically constitute a misleading commercial practice to not mention all information regarding an interest rate in an advertising leaflet distributed towards consumers.

As of September 2008, the defendant offered consumers to open a savings account under the name “Toprekening”. An information folder regarding the Toprekening was drafted and distributed amongst consumers. Information in respect of the flexible nature of the interest rate that would apply after six months was not explicitly mentioned in this folder. In small letters, the defendant stated that the interest mentioned could change, and was not applicable to all saving amounts.

More than 750.000 savers opened an account. Six months after opening such account, the interest was lowered with 1 percent by defendant. A foundation called “Stichting Misrekening” (the plaintiff) was founded, having the statutory objective to look after the interests of consumers that had entered into the Toprekening and suffered damages due to the unclear information regarding the variable interest rate.

The plaintiff started legal proceedings against the defendant arguing that this information was not clear, and thus misleading to consumers. In first and second instance the complaints of plaintiff were rejected.

Does it constitute a misleading commercial practice to not mention all information regarding an interest rate in an advertising leaflet distributed towards consumers?

According to the court, consumers are expected to study the terms of an offer carefully, prior to enter into an agreement regarding a saving account.

Consumers, so the court held, should have reasonable noticed that the folder contained information on the basis of which interest rates may be changed. On the basis of information provided by the defendant, consumers should reasonably have understood that only a fixed interest percentage was guaranteed. During half a year further expectations could not be derived from the information provided by defendant.

This leads to the conclusion that it was clear enough for the average consumer (who is reasonably well-informed and reasonably observant and circumspect) that the Toprekening was subject to a variable interest rate. There was no unfair commercial practice involved.

URL: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHAMS:2013:3144&keyword=ECLI%3aNL%3aGHAMS%3a2013%3a3144

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Plaintiff's request was denied.