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Case detail

B a c k

Directive article Article 5 2. (b)
Article 6 1. (d)
National ID Decision no. RBG-1/2011
Country Poland Decision date 28/01/2011
Common name Decision type Administrative decision, first degree
Court Prezes Urzędu Ochrony Konkurencji i Konsumentów, Delegatura w Bydgoszczy Plaintiff(s) Prezes Urzędu Ochrony Konkurencji i Konsumentów
Court translation The President of the Office of Competition and Consumer Protection, Delegature in Bydgoszcz Defendant(s) Fabryka Zdrowia Wierzbowski i Wspólnicy Spółka jawna w upadłości układowej with its registered office in Ostróda
Subject price reductions
Keywords discountsmisleading commercial practicesprice informationprice reductions

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Headnote

Suggesting the existence of a discount by publishing on a website an applicable price for products in combination with a crossed out higher price (which is the price recommended by the industry to sell those products) and an indication of an amount equal to the difference between the higher and the lower price accompanied by the notion "saved" constitutes an unfair commercial practice when the trader has never applied the crossed out higher price, since the false impression is created that the higher price was the price previously applicable in the company of the trader.

Facts

Defendant is a business entity which operates an on-line pharmacy.  

The products offered by the defendant on its website were announced by indicating two prices: a lower and a higher price. The lower was the price to be paid for the products, the higher price was crossed out. In addition, a third amount, which indicated the difference between the lower and the higher price, was mentioned on the website. This third amount was shown with a phrase “saved”.
 
The defendant did not in any way give information on the meaning or the origin of the prices. In the legal proceedings, the defendant explained that the higher price was in fact the price as suggested by the pharmaceutical companies to sell this the specific product. The defendant upheld that it was never suggested that the defendant previously applied the higher prices in its business activity.

Legal issue

Does the indication on a website of a crossed out higher price which is recommended by the suppliers of the trader, in combination with the indication of an applicable lower price and the indication of the price difference between these two prices, without the trader indicating that the crossed out higher price has never been used by the trader in its commercial activities, constitute an unfair commercial practice?

Decision

The President ruled that the defendant breached the prohibition on unfair commercial practices by publishing two prices on the trader's website, the higher of which has never been applied by the trader in its commercial activity. Such commercial practice is contrary to article 5 section 1 and section 2 point 1 and section 3 in connection with article 4 section 1 and 2 of the Act on Unfair Commercial Practice. 

In the opinion of the President such practice misled consumers by creating the false impression that the defendant offered a discount on the sold products. The price presented in an unfair manner has deprived the consumers of their right to compare offers and make a reasonable choice.
 
A trader who presents its price in the manner as described above, creates the impression that this offer is more attractive due to the fact that the consumer will obtain a financial benefit (by saving the amount that constituted the difference between the higher and the lower price) by buying a product which would not have been obtained for this price, had the consumer bought the product before the presumed discount had been introduced by the trader.
 
Moreover, the defendant cannot justify its commercial practice by stating that it has never expressly indicated that the difference between the two prices constituted a discount granted by this trader. In connection with this, the President stated that, based of well-established commercial practices, the consumer could reasonably assume that the trader applied a discount as indicated under "saved".
 
As a result of the aforementioned, the President concludes that the way of presenting the price information contributed to creating a false impression and that this impression is likely to cause the consumer to take a transactional decision that he would not have taken otherwise.
 
The President indicates that due to the fact that such prices were published on an internet website, the practices of the defendant could potentially affect an undetermined group of consumers, and therefore violated collective interest of the consumers. 

  URL Decision Decision full text
EN N/A
PL http://decyzje.uokik.gov.pl/dec_prez.nsf/0/F5A926F023989EAFC125782A003DD65A/$file/RBG_1_2011.pdf

Result

The commercial practice of the defendant was found to be unfair. 

The President ordered the defendant to stop using the contested practice. 
 
The President ordered to publish the administrative decision on the defendant's website and to maintain it for a period of 14 days. 
 
No financial penalty was imposed. 

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