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Case detail



Directive article Article 6 1. (d)
Article 9 al1 (d)
Annex I al2 29.
National ID PS376
Country Italy Decision date 07/10/2009
Common name SORGENIA-FORNITURA ENERGIA ELETTRICA 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) Sorgenia
Subject unordered product
Keywords aggressive commercial practicesblack listmisleading commercial practicesright of withdrawalspecified priceunordered product

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Headnote

(1) The supply of  energy that has not been ordered by consumers, as well as the obstruction of a consumer's right of withdrawal, constitute aggressive commercial practices.

(2) Comunicating false information regarding specific price advantages in order to lure the consumer into a contract, constitutes a misleading commercial practice.

Facts

Further to several complaints reported between May 2008 and May 2009, the Italian Competition Authority started its investigation proceedings on 14 May 2009 against Sorgenia (an Italian energy supplier) for the following alleged unfair commercial practices: 

(1) Activation of electricity and/or gas supply, in the absence of a consumer order and/or by virtue of counterfeited signature;

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

(3) The communication of false information with the purpose to lure the consumer into an agreement.

Legal issue

Do the supply of energy services that were not ordered by the consumer, the request for payment for such services, and the obstruction of the right of withdrawal constitute unfair commercial practices?

Decision

The Italian Competition Authority decided that these practices indeed constitute unfair commercial practices, in particular with respect to the following elements:

(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, while the trader did not use the required degree of professional diligence in order to protect consumers and avoid such unfair practice. According to the Italian Competition Authority, this practice falls within the scope of Annex I-29 of the UCP Directive.

(2) Aggressive commercial practice - since it constitutes a non-contractual barrier to the exercise of the rights of withdrawal. According to the Italian Competition Authority, this practice falls within the scope of article 9 of the UCP Directive.

(3) Misleading commercial practice - since it is able to misguide consumers with respect to the extent of a specific price advantage. Moreover, given the liberalisation in progress, a relevant informative asymmetry applies (as set forth by Article 6 of the UCP Directive).

  URL Decision Decision full text
EN N/A
IT http://www.agcm.it/agcm_ita/DSAP/Dsap_pi.nsf/a0d111d6626f957fc125652a00315873/2c77ca8624e6cdcdc125765b003a4398?OpenDocument&Highlight=2,PS376

Result

The Italian Competition Authority decided to fine Sorgenia on the basis of the gravity, and the duration of the practice, for an amount equal to 350.000 EUR. 

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