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Case detail

B a c k

Directive article Article 5 2.
Article 6 1.
National ID Consiglio di Stato, Sez. VI, Sentenza 5 luglio 2011, n. 5368
Country Italy Decision date 05/07/2011
Common name "Mutui BNL" Decision type Supreme court decision
Court Consiglio di Stato Plaintiff(s) Autorità garante della concorrenza e del mercato
Court translation Council of State Defendant(s) Banca nazionale del lavoro S.p.a.
Subject after-sales service
Keywords professional diligence

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Headnote

(1) The delaying of the application of legal provisions which enable a consumer to withdraw from a contract, constitutes a misleading commercial practice in so far as such practice is carried out for an excessive period of time and without any reasonable justification.
(2) The rules on unfair commercial practices equally apply to after-sale services.
 

Facts

On 26 August 2009, the Italian Competition Authority found that the defendant had committed unfair commercial practices by delaying, without justification, the application of legal provisions enabling loan subscribers to redeem mortgage loans. On that basis, a fine of 180.000 Euros was imposed upon the defendant.
Following the appeal lodged by the defendant, the Administrative Court of first instance decided to uphold its requests as regards the amount of the fine, and rejected the appeal on the remaining part.
The Administrative Court of first instance decision was appealed before the Supreme Administrative Court ("Council of State" or "Consiglio di Stato") by both the defendant and the Italian Competition Authority, which asked for its partial annulment.
In the appeal, the defendant argued that its practices after the conclusion of mortgage contracts, cannot constitute "commercial practices" in the sense of the UCP Directive as these practices are not aimed at the sale of a product and as they do not constraint consumers economic freedom, nor their right to take informed decisions.
On the other hand, the Italian Competition Authority claimed that the Administrative Court of first instance incorrectly ordered a new determination of the amount of the fine. In this respect, the Authority argued that, in determining the amount of the fine, it took in due consideration the measures adopted by the bank to address its preliminary concerns and that it had focused on the gravity and duration of the infringement.
 

Legal issue

(1) Does the delaying the application of legal provisions which enable a consumer to withdraw from a contract, constitute a misleading commercial practice?
(2) Do the rules on unfair commercial practices equally apply to after-sale services?
 

Decision

(1) The court first holds that practices adopted by traders, consisting in delaying the application of legal provisions enabling a consumer to withdraw from a mortgage loan, constitute unfair commercial practices, in so far as such practices are carried out for an excessive period of time (in this case, one year) and without any reasonable justification.
(2) Furthermore, the court held in response to the defendant's arguments, traders are obliged to comply with obligations of professional diligence even when providing after-sales assistance to consumers, hence when the consumer has already taken a transactional decision.
 

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Result

The court rejected the appeal lodged by defendant, and upheld the appeal of the Italian Competition Authority, confirming its initial decision imposing a fine of 180.000 Euros upon the defendant.

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