Article 5 1.
Article 5 4. (a)
Article 7 1.
Article 7 3.
Article 7 4.
Article 13 al1
|National ID||Administratīvās apgabaltiesas spriedums lietā Nr. A42597408|
|Common name||Decision type||Administrative decision in appeal|
|Court||Administratīvā apgabaltiesa (Rīga)||Plaintiff(s)||SIA "Lattelecom"|
|Court translation||Regional Court of Administrative Cases (Riga)||Defendant(s)||Consumer Rights Protection Centre|
|Keywords||advertisement, internet, invitation to purchase, material information, misleading omissions, transactional decision|
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(1) The production, distribution and content of advertisements is subject to the (national implementation of the) UCP Directive.
(2) When an advertisement constitutes an invitation to purchase, the advertisement itself must contain all key information in order to allow the consumer to make an informed transaction decision, irrespective of any additional information that would be provided separately.
The plaintiff offered internet access services to consumers for a fixed fee starting from LVL 6,90.
The Consumer Rights Protection Centre (CRPC) investigated this offer, following a complaint from plaintiff’s competitor.
In its decision, the CRPC concluded that the practices of the plaintiff were unfair, because the announced fixed price was only available for six months, and only under the condition that the consumers would purchase the product for at least 18 months.
Following this decision, the plaintiff submitted a complaint at the Regional Court of Administrative Cases to counter the decision of the CRPC, claiming that:
(1) its practices were not in the scope of the unfair commercial practices legislation (only within the scope of advertising legislation); and
(2) in its evaluation process, the CRPC had to take into account not only the material text of the advertisement, but also subsequent communication of the plaintiff with consumers.
(1) Is the production, distribution and content of advertisements subject to the (national implementation of the) UCP Directive?
(2) Does the subsequent communication of a trader need to be taken into account to evaluate an unfair commercial practice regarding an advertisement of a trader?
(1) The court first referred to recitals 3, 4, 6, 8, 13 and 14 and articles 3, 5 and 7 of the UCP Directive. It concluded that the aim of the UCP Directive is to impose uniform rules on unfair commercial practices towards consumers, including misleading advertising (e.g., a misleading advertisement directed at consumers).
The court also noted that the UCP Directive had been implemented in Latvian law through the Unfair Commercial Practice Prohibition Law. Accordingly, questions relating to consumers and protection of economic interests have to be assessed under the scope of Unfair Commercial Practice Prohibition Law, and not the Advertisement Law.
(2) The court considered that recital 14 of the UCP Directive states that in respect of omissions, a limited number of key elements of information are set forth that are essential to the consumer to make an informed transactional decision. Such information will not have to be disclosed in all advertisements, but only where the trader makes an "invitation to purchase", as defined in the UCP Directive.
The court concluded that in the case at hand, the advertisement is to be considered as an offer to conclude a purchase under the scope of the UCP Directive. Accordingly, the advertisement had to include all key information for the consumer to be able to make a choice regarding the purchase of the product.
The court also stated that the text of an advertisement must be truthful, irrespective of any information that consumers could obtain after consulting the trader, because an advertisement influences a consumer at the very moment it is seen by the consumer. As a result, actions of the consumer concerning further interest in the product should be considered as consequences of the advertisement, and not the continuation or prolongation of the advertisement.
|URL Decision||Decision full text|
The appeal claim of the plaintiff was dismissed .
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