Case law

  • Case Details
    • National ID: 2-10-51597
    • Member State: Estonia
    • Common Name:link
    • Decision type: Court decision, first degree
    • Decision date: 02/03/2011
    • Court: Viru County Court (Narva)
    • Subject:
    • Plaintiff: L.D.
    • Defendant: Elisa Eesti AS
    • Keywords: misleading omissions
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 2.
  • Headnote
    Charging for services when the consumer is not notified upon the conclusion of the agreement that the services are automatically activated (hence, the consumer must manually deactivate the service if not requested), constitutes an unfair commercial practice.
  • Facts
    The plaintiff, a mobile phone user, paid an invoice of EEK 4,919 based on the agreement with the defendant, a telephone company, for using roaming services. However, the plaintiff claimed he had not been in a foreign country during the time period for which the roaming services were charged.

    The plaintiff claimed he had not ordered a roaming service. According to the plaintiff, the subscription agreement did not contain any provisions according to which the roaming services were automatically activated upon the conclusion of the subscription agreement and according to which the client should deactivate the roaming services himself.

    On the other hand, the defendant argued that if the mobile phone has been set to choose the network automatically, it may happen that the mobile phone may automatically choose in some areas a network with a stronger signal or a less busy network. To prevent this from happening in areas that are near country border, the mobile phone has to be set to manual network selection function. Hence, according to the plaintiff, it did not matter whether the plaintiff was in fact abroad or not at the time when the roaming services were used and thus the invoice for roaming services was correct and grounded.
  • Legal issue
    The court found that plaintiff’s claim was grounded. The plaintiff had not ordered roaming services and the defendant did not present any evidence that the plaintiff had expressed his wish to activate roaming services either upon conclusion of the subscription agreement or later.

    According to the court, the defendant’s defense, namely that the roaming services were automatically activated upon the conclusion of the subscription agreement and the client could request to deactivate the services later on, was not in accordance with the information published on the defendant’s webpage about roaming services. According to the webpage, the customer had to order the roaming services and, in order to activate the service, the customer had to express his clear consent for such activation.

    The court found that if due to some technical reasons the mobile phone switches to a foreign network in areas near country border, the defendant should have explained this risk to the plaintiff and also should have referred to the service de-activation possibility.

    The court emphasized that the plaintiff is a consumer in the meaning of the Consumer Protection Act and the defendant, as a trader, has the obligation to provide the consumer with accurate information about the services offered and the risks related to the use of such services. The court further pointed out that the controversial information provided by the defendant about the roaming services can be regarded as a misleading commercial practice in the meaning of article 12 and article 12.3 section 1 of the Consumer Protection Act and article 7 of the UCP Directive.
  • Decision

    Does charging services, when the consumer is not notified upon the conclusion of the agreement that the services are automatically activated (hence, the consumer must manually deactivate the service if not requested), constitute an unfair commercial practice?

    Full text: Full text

  • Related Cases

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  • Legal Literature

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  • Result
    The plaintiff’s request was granted.