Article 7 1.
Article 7 4. (c)
|National ID||Court of Appeal Brussels, 4 May 2010|
|Common name||Court of Appeal Brussels, 4 May 2010||Decision type||Court decision in appeal|
|Court||Hof van Beroep Brussel||Plaintiff(s)||NV Delta Lloyd Bank|
|Court translation||Court of Appeal Brussels||Defendant(s)||NV Deutsche Bank|
|Subject||limitations imposed by the medium|
|Keywords||advertisement, average consumer, code of conduct, communication medium, misleading advertising, misleading omissions|
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The omission to mention in a radio advertisement that the obtaining of the advertised product is subject to additional conditions, constitutes a misleading commercial practice.
The plaintiff, a financial institution, launched a promotional advertisement, including on the radio, in which it promoted an offer to open a bank account with an interest rate of 7%. However, in the radio advertisement, it was not communicated that the obtaining of this interest rate was dependent on the consumer purchasing another financial product, amounting at least to 5000 Eur. The radio commercials merely mentioned with the statement that further conditions could be obtained at the plaintiff's offices or on the Internet and the advertisement ended with the sentence "Conditional offer.".
The defendant, a competing financial institution filed a complaint against this practice by stating that this radio commercial gave misleading information to consumers.
Does the omission to mention in a radio advertisement that the obtaining of the advertised product is subject to additional conditions, constitute a misleading commercial practice?
The court first held that it cannot be disputed that the attention of the average consumer is drawn to the fact that a bank account with an interest rate of 7% is offered. In the court's opinion, an average consumer could reasonably be of the opinion that no additional conditions should be complied with.
The plaintiff argued that it should be taken into account that the medium through which the advertisement was broadcasted, imposes certain limitations upon the plaintiff. The court did not follow this reasoning and stated that it is not reasonably impossible for the defendant to state in the radio commercial that the obtaining of the advantage requires the purchase of additional product. In addition, referring to the fact that a consumer may obtain additional information in the local offices or on the Internet is not sufficient as the consumer in this case has already taken the decision to visit the plaintiff's sales channels.
The court also rejected the argument of the plaintiff stating that a consumer should reasonably expect that such an advantageous offer will be bound to additional conditions.
The plaintiff also invoked that the code of conduct applicable to financial institutions specifically advised banks to use notions such as "conditional offer", or "further visit or website for additional conditions", in case of conditional offers advertised through radio. However, according to the court, the code of conduct is not applicable in casu as it only applies to long term savings. Furthermore, the provisions of a code of conduct cannot free a trader of its obligations under applicable legislation.
Next, the plaintiff mentioned that its practice could not have influenced the transactional decision of the consumer, as the consumer will first be fully informed on the conditions before making the purchase. However, according to the court, the essence of such a radio commercial is to persuade the consumer to take a transactional decision, hence the argument of non-influence may not be withheld.
Finally, the fact that competitors of the plaintiff used similar techniques was discarded by the court as irrelevant.
|URL Decision||Decision full text|
The court ruled against the plaintiff.
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