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Case detail

Directive article Annex I al1 20.
National ID A502-989/2010
Country Lithuania Decision date 30/09/2010
Common name Decision type Supreme court decision
Court Lietuvos vyriausiasis administracinis teismas (Vilnius) Plaintiff(s) UAB "Mikrovisatos TV"
Court translation Supreme Administrative Court of Lithuania (Vilnius) Defendant(s) Competition Council
Subject free
Keywords black listfreemisleading advertisingmisleading commercial practices

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Headnote

In the context of advertising free digital TV, the cost of purchasing a digital TV set-up box or the fee for activating an additional TV card cannot be considered "unavoidable costs of responding to commercial practice and collecting or paying for delivery of the service" (as described by Annex I-20 of the UCP Directive). Advertising free digital TV in such circumstances is a misleading commercial practice that breaches Annex I-20 of the UCP Directive.

Facts

 

Through flyers and regional newspapers, the plaintiff publicised an advertisement that stated that "you will enjoy free digital TV through additional TVs". However, consumers willing to accept this proposal had to order one of the TV channel packages and respectively pay for digital TV set-up box or activation of an additional TV card.
 
The defendant concluded that the advertisement was misleading, because it fell within the scope of Annex I-20 of the UCP Directive, as it describes digital TV services as "free" while the consumer had to pay a cost other than the unavoidable cost of responding to the commercial practice. A fine of LTL 10.000 (approximately 2.587 EUR) was imposed.
 
The plaintiff appealed the defendant’s decision before the Vilnius Regional Administrative Court, arguing that the cost of purchasing a digital TV set-up box and the fee for the activation of an additional TV card were unavoidable. 
 
The Vilnius Regional Administrative Court rejected the appeal. The plaintiff further appealed before the Supreme Administrative Court of Lithuania, again arguing that the cost of purchasing a digital TV set-up box and the fee for the activation of an additional TV card were unavoidable. 

Legal issue

Is Annex I-20 of the UCP Directive breached when "free digital TV" is advertised, while the customer would still have to pay for either a digital TV setup box or the activation of an additional TV card? ?

Decision

The court first stated that a commercial practice will be considered unfair in all circumstances if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item, because otherwise the trader may create a false impression about itself or its products.

The court further noted that it cannot agree with the argument of the plaintiff that the cost of purchasing a digital TV set-top box or the fee for activating an additional TV card can be considered unavoidable costs.

According to the court, the advertisement in question provided a consumer with information that when he/she has an additional TV, would be able to see digital TV channels without incurring any costs. However, the factual circumstances proved that actual additional costs did apply. Thus, the advertisement was considered false and was able to mislead a consumer.

  URL Decision Decision full text
EN N/A Click here
LT http://bylos.lvat.lt/getdocument.aspx?id=baca01be-9f08-49b7-b425-24dd450641f9 Click here

Result

The plaintiff’s appeal was dismissed. The decisions of the defendant and the Vilnius Regional Administrative Court remained unchanged.

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