European Commission

 

Case detail

B a c k

Directive article Article 6 1. (d)
Article 7 1.
Annex I al1 20.
National ID Competition Council decision No 2S-24 of 20 October 2011
Country Lithuania Decision date 20/10/2011
Common name Decision type Administrative decision, first degree
Court Lietuvos Respublikos konkurencijos taryba (Vilnius) Plaintiff(s)
Court translation Competition Council of the Republic of Lithuania (Vilnius) Defendant(s) IMK LT, UAB
Subject delivery
Keywords black listcomparative advertisingdelivery chargesmisleading advertisingprice comparison

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Headnote

Comparing delivery services with similar services offered by competitors, claiming that the own delivery services are free of charge whilst not mentioning that this costless character only applies to a certain category of goods, constitutes an unfair commercial practice and a misleading comparative advertising.

Facts

The defendant sent newsletters to consumers in which the defedant’s delivery services were compared with thise of its competitors and in which it was claimed that the defendant did not charge delivery costs (the advertisement included statements such as “Free of charge delivery”, “All goods are delivered free of charge”). Howver, the defendant did not mention that the free delivery applied only to those goods whose prices were not less than LTL 199.99 (approx. EUR 58).

Legal issue

Does comparing delivery services with similar services offered by competitors, claiming that the own delivery services are free of charge whilst not mentioning that this costless character only applies to a certain category of goods, constitute an unfair commercial practice and a misleading comparative advertising?

Decision

The Competition Council stated that the defendant’s activities in question constitute both advertising and commercial practices.
The Competition Council referred to the Lithuanian Law on Advertising pursuant to which an advertisement is in all circumstances regarded as misleading if it falls within the part of the blacklist concerning misleading practices. It has been stated that the complex analysis of the Lithuanian Law on Advertising and the Lithuanian Law on Prohibition of Unfair Business-to-Consumer Commercial Practices suggests that it is not necessary to prove the impact or possible impact of the said blacklisted practice on the average consumer’s economic behavior. Accordingly, to determine the violation it is sufficient to prove that the advertisement falls within the misleading part of the blacklist.
The Competition Council further evaluated the statements of the e-mails (“Free of charge delivery”, “All goods are delivered free of charge”, by comparing the defendant’s and its competitors’ delivery services and by indicating that the defendant perform its delivery services free of any charge) without mentioning any reservations or additional terms, has the logic result that an average consumer would reasonably think that all the goods of the defendant would be delivered for free.
The Competition Council concluded that the statements of the defendant regarding the free of charge delivery for all the goods without clarifying that this applies only to consumers whose order exceeds LTL 199.99 (approx. EUR 58) constitutes an unfair commercial practice and a misleading comparative advertising.
 

  URL Decision Decision full text
EN N/A
LT http://www.konkuren.lt/index.php?show=nut_view&nut_id=1320

Result

A fine of LTL 20,000 (approx. EUR 5,792) was imposed on the defendant.

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