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Case detail



Directive article Article 6 1. (d)
Annex I al1 11.
National ID Voorz. Kooph. Brussel 12 October 2012
Country Belgium Decision date 12/10/2012
Common name Decision type Court decision, first degree
Court Voorz. Kooph. Brussel Plaintiff(s) Interparking NV
Court translation President of the Commercial Court Brussels Defendant(s) Budget Parking BVBA
Subject misleading commercial practices
Keywords advertisementadvertorialblack listeditorial contentprice

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Headnote

(1) Not mentioning, on a trader's website, information on an additional cost in case a certain option is chosen to make use of service, constitutes a misleading commercial practice.

(2) Making available editorial content on one's website to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer, constitutes a blacklisted commercial practice.
 

Facts

The plaintiff and the first defendant are companies offering parking space to people. The second defendant is a person exploiting a website on which price comparisons are made between different car park companies.

Plaintiff cited both defendants before the courts on a number of legal grounds, including the violation on the legation on unfair commercial practices.

As such, the plaintiff stated that on the website of the first defendant, different tariffs were displayed depending on the language in which the parking spot was reserved (Dutch or French). When reserving a spot via the French page of the website, consumers were not informed on the possibility to park their cars themselves and to retain their own key, which entailed an extra cost of 10 EUR. The Dutch version of the website did mention this possibility and the cost related to it.

Next, it was held by the plaintiff that the second defendant's website did not mention clearly that it advertised the services of the first defendant, this in contravention of the prohibition to "use editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)" (paragraph 11 of the Annex I to Directive 2005/29).  It was established that the second defendant made objective price comparisons, but also allowed the first defendant to advertise its services on the second defendant's website; in addition, the website itself stated: "the website is not entirely independent".
 

Legal issue

(1) Does not mentioning, on a trader's website, information on an additional cost in case a certain option is chosen to make use of service, constitute a misleading commercial practice?

(2) Does making available editorial content on one's website to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer, constitute a blacklisted commercial practice?
 

Decision

(1) According to the court, not mentioning the information on the additional cost of 10 EUR when the consumer parks his car himself and retains the key, misleads the consumer on the price of the offer and the conditions under which the offer can be obtained. The price payable by the consumer when he makes use of the option "park yourself" is 10 EUR higher than the price which was advertised. As a result, so the court stated, this practice amounts to a misleading practice in the sense of the Belgian Market Practices Act.

(2) In relation to the editorial content on second defendant's  website, the court also agreed with the arguments of the plaintiff, by stating that the second defendant's argument that the entire website should not be considered as an advertisement as it only "offers the possibility" to place an advertisement, could not be followed as it was clear that second defendant allowed the first defendant to advertise its services on the second defendant's website and that the website itself already stated that the website was not entirely independent.

The court also considered that this was all the more so, as the website nowhere made a distinction between the alleged objective comparisons on the one hand, and the advertorial content on the other hand, as a result of which the objective nature could not be guaranteed.
 

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Result

The court followed plaintiff's arguments on the above-mentioned points on unfair commercial practices.

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