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Case detail

Directive article Annex I al2 26.
Annex I al2 29.
National ID PS91
Country Italy Decision date 04/09/2008
Common name ENEL ENERGIA-RICHIESTA CAMBIO FORNITORE Decision type Administrative decision, first degree
Court Autorità Garante della Concorrenza e del Mercato (Rome) Plaintiff(s) Italian Competition Authority
Court translation Italian Competition Authority Defendant(s) Enel (various entities), Visiant Contact Centre S.r.l., In & Out S.p.A., Primavox S.a.s. and Easy Word S.a.s.
Subject aggressive commercial practices
Keywords aggressive commercial practicesblack listmisleading commercial practicesright of withdrawalunordered productunwanted solicitations

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Headnote

(1) The provision of unordered energy services falls within the scope of Annex I-29 of the UCP Directive.

(2) Obstructing a consumer to exercise his right of withdrawal constitutes an aggressive commercial practice. 

Facts

Further to several consumer complaints concerning the provision of unordered electricity and gas services, on February 2008 the Italian Competition Authority decided to start investigation proceedinsg against the following companies:

- Enel S.p.A., Enel Distribuzione S.p.A., Enel Energia S.p.A. Enel Servizio Elettrico S.p.A.; and

- Visiant Contact Centre S.r.l., In & Out S.p.A., Primavox S.a.s. and Easy Word S.a.s., third companies in their quality of Teleselling agent companies for Enel Energia S.p.A..

The commercial practices targeted by the Authority consisted of:

(1) Activation of electricity and/or gas supply, in the absence of the consumer order;

(2) Obstructing the exercise of the right of withdrawal;

(3) Misleading advertising communications;

(4) Promotion of an advertising campaign aimed at developing special energy offers.

Since the practises had been carried out also by using the telephone channel and television spot, on 18 July 2008 the opinion of the Italian Communication Authority was required.

Legal issue

 

(1) Does the provision of energy services that were not consciously ordered constitute an unfair commercial practice?

(2) Is it an unfair commercial practice to obstruct a consumer's right of withdrawal? 

Decision

The Italian Competition Authority decided that these practices were unfair, in particular, with respect to:

(1) Aggressive commercial practice - since it significantly impairs (or is likely to significantly impair) the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him (or is likely to cause him) to take a transactional decision that he would not have taken otherwise. Moreover, this practice also falls within the scope of the black list (Annex I-29 of the UCP Directive), since consumers have been requested with the payment of a provided service which they had not ordered;

(2) Aggressive commercial practice - since it constitutes an obstacle of a contractual consumer right, as set forth by Article 8 and 9 of the UCP Directive;

(3) Aggressive commercial practice - since it determines an unjustified influence of the economic behaviour of the average consumer by means of misleading information. Moreover, it also falls within the scope of the black list (Annex I-26 of the UCP Directive), since it is carried out by making persistent and unwanted solicitations by telephone.

(4) Misleading commercial practice - since it misguides consumers with respect to both the role and the activity of the trader, and it influences and is likely to influence the economic choice as set forth by Article 6 of the UCP Directive. Moreover, it also represents  a misleading omission, since consumers have not been provided with the material information necessary to take an informed transactional decision. It thereby causes, or is likely to cause, the average consumer to take a transactional decision that he would not have taken otherwise as set forth by Article 7 of the UCP Directive.

  URL Decision Decision full text
EN N/A Click here
IT http://www.agcm.it/agcm_ita/DSAP/Dsap_pi.nsf/a0d111d6626f957fc125652a00315873/e83e4acd7d63e62cc12574dd0055d985?OpenDocument&Highlight=2,ps91 Click here

Result

The Italian Competition Authority decided to fine the traders as follows:

(1) Energia S.p.A. - 500.000 EUR;

(2) Enel Energia S.p.A. - 500,000 EUR;

and to impose to cease the unfair behaviour.
 

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