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Case detail

B a c k

Directive article Article 6 1.
Annex I al1 6.
National ID 3J/2011
Country Portugal Decision date 25/02/2011
Common name Decision type Other
Court Primeira Secção do Júri de Ética do Instituto Civil da Autodisciplina da Comunicação Comercial (Lisboa) Plaintiff(s) Unidentified consumer
Court translation First Division of the Ethics Panel of the Civil Institute for Self-Regulation in Commercial Communication (Lisbon) Defendant(s) Grupo Pestana Pousadas – Investimentos Turísticos S.A.
Subject bait advertising
Keywords bait advertisingbait and switchblack listmisleading advertisingprice information

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Headnote

Advertising a hotel promotion starting at a particular price and then informing prospective customers that it is not available, instead offering a similarly-named promotion with a higher price range constitutes misleading advertising and is an unfair commercial practice under article 6 (1) (a) and under point 6 of Annex I of the Directive.

Facts

The defendant is a large Portuguese hotel chain that placed an advertisement on its website offering a promotion entitled "Pacote Idade de Ouro – 3 Noites" (“Golden Age Package Deal – 3 Nights”). This advertisement stated that the promotion was available for prices of €80 and upwards, which referred to the price per room for a stay of three (3) nights in one of the participating hotels and also included breakfast. The terms and conditions of the promotion indicated that the offer was valid until March 2012.

The plaintiff noticed the advertisement on the defendant’s website and attempted to book a room in a particular participating hotel. Having selected the dates and participating hotel which he wished to book, the plaintiff discovered that the price of the stay would amount to a minimum of €111 for a single room for three (3) nights. Further, while attempting to book the room, the defendant’s website only made reference to a “Golden Age” promotion, and not “Golden Age Package Deal – 3 Nights”. The “Golden Age” promotion offered different prices and conditions than those set out in “Golden Age Package Deal – 3 Nights”.
 
The plaintiff then called the hotel to verify whether it would be possible to book a room there under the “Golden Age Package Deal – 3 Nights” promotion for €80. He was informed that only the “Golden Age” promotion was available and that €111 was the lowest price available for the dates on which he intended to stay at the hotel.
 
The plaintiff filed a complaint with the Civil Institute for Self-Regulation in Commercial Communication, alleging that the defendant had engaged in misleading advertising.

Legal issue

Does advertising a hotel promotion starting at a particular price and then informing prospective customers that it is not available, instead offering a similarly-named promotion with a higher price range, constitute an unfair commercial practice? 

Decision

The court considered that a trader offering goods or services to consumers at a particular price and then subsequently refusing to provide consumers with those goods or services at that price, gives rise to grounds for suspicion that the trader intends to promote a different good or service. Such a commercial practice is deemed to be unfair in all circumstances, as per point 6 of Annex I of the Directive.

The “Golden Age Package Deal – 3 Nights” promotion was only advertised to end in March 2012 and the plaintiff had chosen to book a hotel participating in the promotion on dates that complied with the restrictions set out in the terms and conditions for the “Golden Age Package Deal – 3 Nights” promotion. The plaintiff confirmed both online and over the telephone that the “Golden Age Package Deal – 3 Nights” promotion was in fact not available. Moreover, the defendant instead made another available promotion that was named similarly (“Golden Age”) at a substantially higher price than the “Golden Age Package Deal – 3 Nights” promotion.
 
Consequently, the court considered that the advertisement on the defendant’s website was capable of misleading consumers as to the existence of the advertised promotion and is therefore in breach of article 6 (1) (a) of the Directive.

  URL Decision Decision full text
EN N/A
PT http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADcJYw42&AGIJPQ5v=ADEJYw4xVmstela9Xr1 Click here

Result

The plaintiff’s allegations were upheld and the defendant was ordered to remove the advertisement from its website until it was amended accordingly.

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