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Case detail

B a c k

Directive article Article 7 1.
Article 7 4. (c)
National ID PS7444
Country Italy Decision date 14/12/2011
Common name "ITALIA - PROGRAMMI.NET- ABBONAMENTO PER SOFTWARE" Decision type Administrative decision, first degree
Court Autorità Garante della Concorrenza e del Mercato (Rome) Plaintiff(s)
Court translation Italian Competition Authority Defendant(s) Estesa Limited Global Gateway
Subject distance contracting
Keywords aggressive commercial practicesdecision to purchaseright of withdrawalDistance Selling Directive

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(1) Omitting information on the paying nature of a service constitutes a misleading commercial practice.
(2) The refusal to give effect to a valid request for withdrawal from a consumer contract, constitutes an aggressive commercial practice.


Further to a complaint reported by several consumers and consumers associations, the Italian Competition Authority launched an investigation against defendant on 18 July 2011. More in particular, it was investigated by the Authority whether the commercial practices consisting in the activation of paid services without the express consumer's consent, consisted a breach of the rules on unfair commercial practices.
According to the consumer complaints, the defendant via its website website, invited users that were visiting the website for a free software download, to register on the website. However, the defendant did not make clear that - by means of the registration  - the subscribers were bound by a binding contract of two years for the provision of paid download services.
In addition, it was established that the defendant subsequently refused to terminate the contracts, although withdrawal requests were sent within 10 working days from the registration, and that it repeatedly requested payment for the download services in absence of which the defendant would take the necessary legal actions to claim payments due.

Legal issue

(1) Does omitting information on the paying nature of a service, constitute a misleading practice?
(2) Does the refusal to give effect to a valid request for withdrawal from a consumer contract, constitute an aggressive commercial practice?


(1) The Italian Competition Authority firstly ascertained that the defendant had misled consumers that were only visiting defendant's website with the purpose of a free software download, by falsely promoting the non-paid character of the services provided.
The Authority further held that the defendant breached the prohibition on misleading commercial practices by activating the subscription to a paid-for service without giving the consumers the necessary information required to take an informed transactional decision, such as information on the terms and conditions and the binding nature of the contract.
(2) Moreover, the Authority also held that the defendant has committed an aggressive commercial practice, consisting in the refusal to terminate the contract which the consumers were induced to subscribe following the misleading advertisement, whilst the termination right was lawfully exercised within the minimum term set out by mandatory legal provisions on distance contracts. It also constitutes an aggressive commercial practice, according to the Authority, to repeatedly request undue payments combined with threats of legal actions.

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The Italian Competition Authority decided to fine defendant for a total amount of Euro 1.500.000.

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