Unfair Commercial Practices Directive, Chapter 2, Article 5, 2. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (d) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8

(1) It does not make a difference in establishing an unfair commercial practice whether the consumer(s) involved is effectively harmed by the act committed.

(2) Approaching consumers in a very persistent way in order to push through a transactional decision, constitutes an aggressive commercial practice.

(3) Falsely stating that the offer is only available for a limited time and only for consumers with residence in a particular area, whereas in reality there are no such limitations, constitutes a misleading commercial practice.

(4) Mentioning that energy prices are fixed for a certain period so that consumers will not be confronted with fluctuating rates, while gas prices are in fact not fixed as a result of which consumers will be confronted with variable rates after all, constitutes a misleading commercial practice.

(5) Asking consumers' permission for direct debit on the pretense that consumer’s details had to be checked, while in reality the reason was to actually use this permission for direct debit of the monthly payments, constitutes an unfair commercial practice due to violation of requirements of professional diligence.

 

The plaintiff, a Dutch power company, approached consumers through telemarketing (cold calling), offering energy supply services. The defendant (the Dutch consumer authority) became aware of several complaints about the way in which consumers were approached and the way they were offered to reach an agreement with the plaintiff.

For example, plaintiff made persistent and unwanted solicitations by telephone, provided misleading information regarding the main characteristics and the price of the service. Therefore, defendant conducted an inquiry with regard to these actions and concluded that the plaintiff had acted in violation of the UCP-rules. Consequently, the defendant imposed a fine on the plaintiff.

The plaintiff started legal proceedings against the fine imposed, arguing that it had not distorted the economic behavior of the consumers approached. Also, the economic interests of consumers were not harmed since the plaintiff was in fact the cheapest energy supplier in the period of the inquiry conducted by the defendant. Furthermore, according to the plaintiff, the defendant applied a wrong standard with regard to the ‘average’ consumer: consumers are not naive and bad informed, but reasonably well- informed and reasonably observant and circumspect. Consequently, the plaintiff denied it had acted in violation of the UCP-rules.

 

The court first ruled that the question whether a consumer is effectively harmed by the act committed, is irrelevant. Relevant is whether economic interests of consumers could have been harmed.

Next, the court held that the average consumer is indeed well- informed and reasonably observant and circumspect, however determining whether under the concrete circumstances consumers will be misled depends on the circumstances of the case. Due to the lack of experience of the average consumer in the field of energy market and due to using telemarketing (which has an overwhelming influence on consumers), consumers could have taken a transactional decision that he would not have taken otherwise.

The court further held that the plaintiff acted in a very persistent way in approaching consumers. Even when consumers indicated they had no interest in the offer, the plaintiff pushed through to enforce a contractual obligation. This constituted an aggressive commercial practice due to the persistent and unwanted solicitations by telephone.

Due to the largeness of the scale of telemarketing used by the plaintiff, the offer was available for consumers without making a distinction between them. By falsely stating that the offer was only available for a limited time or on particular terms, the plaintiff tried to elicit an immediate decision and deprive consumers of sufficient time to make an informed choice. This was considered to be unfair.

The distinction made by plaintiff between electricity and gas was not explicitly communicated to consumers. Therefore, so the court held, it was unclear that they would be confronted with price increases after all. Such information had to be communicated in a transparent and clear manner so that they were able to make a well-informed transactional decision. This constituted a misleading commercial practice.

Although the information provided was misleading, this was not considered to be a commercial practice that falls within the scope of comparative advertising. Therefore, the court ruled that there was no violation of the Dutch implementation of article 6, 2 (a) of the Directive.

According to the court, the practice of asking consumers' permission for direct debit on the pretense that consumer’s details had to be checked, while in reality the reason was to actually use this permission for direct debit of the monthly payments, was contrary to the requirements of professional diligence since it materially distorts or was likely to materially distort the economic behaviour with regard to the offer of the average consumer

 

(1) Does it make a difference in establishing an unfair commercial practice whether the consumer(s) involved is effectively harmed by the act committed?

(2) Does approaching consumers in a very persistent way in order to push through a transactional decision, constitute an aggressive commercial practice?

(3) Does falsely stating that the offer is only available for a limited time and only for consumers with residence in a particular area, whereas in reality there are no such limitations, constitute a misleading commercial practice?

(4) Does mentioning that energy prices are fixed for a certain period so that consumers will not be confronted with fluctuating rates, while gas prices are in fact not fixed as a result of which consumers will be confronted with variable rates after all, constitute a misleading commercial practice?

(5) Does asking consumers permission for direct debit on the pretense that consumer’s details had to be checked, while in reality the reason was to actually use this permission for direct debit of the monthly payments, constitute an unfair commercial practice due to violation of requirements of professional diligence?

 

URL: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBROT:2012:BY6184&keyword=ECLI%3aNL%3aRBROT%3a2012%3aBY6184

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The plaintiffs' request was partly granted.