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Case detail

B a c k

Directive article Article 7 1.
Annex I al2 29.
National ID Decision no. DDK-6/2011
Country Poland Decision date 02/11/2011
Common name Decision type Administrative decision, first degree
Court Prezes Urzędu Ochrony Konkurencji i Konsumentów w Warszawie Plaintiff(s) The President of the Office of Competition and Consumer Protection in Warsaw
Court translation The President of the Office of Competition and Consumer Protection in Warsaw Defendant(s) Polska Telefonia Cyfrowa S.A. with its registered office in Warsaw
Subject aggressive commercial practices
Keywords black listcombined offerspriceprice informationundue influenceunordered product

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Headnote

The delivery of services, initially free of charges and subsequently of a paid-for nature, does not constitute an unfair commercial practice (neither misleading nor aggressive), in the event the trader has established that it has accurately informed the consumer in various ways on the switching from the free to the paid-for nature. 

Facts

The defendant is a joint-stock company which provides consumers with telecommunication services. The defendant launched two services: the "Granie na Czekanie" ("Music While Waiting") service and the "Prenumeraty" ("Subscriptions") package (hereinafter jointly referred to as "the services").
In order to activate the services, the consumer needed conclude a telecommunication service agreement with a validity period for the period indicated in the Terms and Conditions of the Promotional Offer (“Warunki Oferty Promocyjnej”) attached to the aforementioned agreement.
During the promotional period, consumers received the services (being part of the promotion) free of charge. Subsequently, after expiration of the period indicated in the Promotion Terms and Conditions, the consumer was automatically charged for the services with a monthly fee unless the consumer had deactivated the services.
The court initiated investigation proceedings to establish whether the following activities constitute an unfair commercial practice:
1. demanding payment from consumers for services that were not ordered by the consumers;
2. failing to provide consumers in a timely manner complete and accurate information on the terms of provision of the services, in particular failure to deliver, upon the conclusion of the telecommunication service agreement, a standard contract determining the terms of the services.
 

Legal issue

Under which conditions does the delivery of services, initially free of charges and subsequently of a paid-for nature, constitute an unfair commercial practice?

Decision

(1) The court discontinued the proceedings due to its groundlessness. The court ruled that the activity of the defendant was not unlawful and therefore cannot be considered as an aggressive commercial practice. The court first reminds that under article 9 point 6 of the Unfair Commercial Practices Act, a commercial practice shall be regarded as aggressive if it consists of demand to pay for a product which has been delivered and was not previously ordered by the consumer.
In the case at stake, the Terms and Conditions of Promotional Offer, which formed an integral part of the telecommunication service agreement between the consumer and the defendant, contained thorough information on the activation of the services, the court said. Moreover, the consumers agreed to the following provision: “I hereby declare that I have received, read and accepted the Terms of Telecommunications Services, Pricelist of Telecommunication Services and Terms and Conditions of Promotional Offer”. The court concluded that it cannot be defended that the services were not ordered by the consumers, and thus this activity cannot be considered aggressive commercial practice.
(2) Moreover, the court held, neither can it be established that the defendant failed to provide consumers in a timely manner with the necessary information on the services. As said above, Terms and Conditions of the Promotional Offer, which form an integral part of the telecommunication service agreement which the consumer concluded with the defendant, contained specified information about the services.
Prior to the conclusion of the aforementioned agreement, the consumers received the Terms and Conditions of the services. Furthermore, after the activation of the services, consumers received a text message confirming the activation, and they equally received information on the possibility to resign from the services without any charges being due.
Next, it was established by the court that the consumers, before the expiration of the free of charge promotional period, received a text message informing them about the conversion into payable services. The court once again reminded that under article 6 sec.1 of the Unfair Commercial Practices Act, a commercial practice must be regarded as misleading if it omits material information which the average consumer needs to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
In the opinion of the court however, the defendant was conducting necessary multilevel communication with the consumers aimed at ensuring full knowledge about the Services.
 

  URL Decision Decision full text
EN N/A
PL http://decyzje.uokik.gov.pl/dec_prez.nsf/xsp/.ibmmodres/domino/OpenAttachment/dec_prez.nsf/EA03EA0C27443C57C125795E003B8177/Body/DDK-61-14_10_AK_Decyzja_6_2011%20_PTC_.pdf

Result

The court discontinued the proceedings due to its groundlessness. No penalty was imposed on the defendant.

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