Ítélkezési gyakorlat

  • Az ügy részletei
    • Nemzeti azonosító: Kúria Kfv.III.37.869/2014/5.
    • Tagállam: Magyarország
    • Közhasználatú név:N/A
    • Határozat típusa: Legfelsőbb bírósági határozat
    • A határozat napja: 17/02/2015
    • Bíróság: Kúria
    • Tárgy:
    • Felperes: Telenor Magyarország Zrt.
    • Alperes: Gazdasági Versenyhivatal (Competition Authority)
    • Kulcsszavak: average consumer, misleading omissions
  • Az irányelv cikkei
    Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1.
  • Megjegyzés
    (1) If a trader introduces a new concept in its commercials which is not an existing consumer right, the average consumer is not expected to look for additional information on such concept.

    (2) If the commercial practice introducing such new concept does not include every relevant information, such practice is misleading, despite the fact that at a later time, the consumers would have had the possibility to obtain further information.
  • Tények
    In an official proceedings the defendant declared that the plaintiff conducted a misleading commercial practice when the plaintiff had not informed the consumers that if the consumers exercise the right of the 5-day return guarantee provided by the plaintiff with respect to a number of its subscription packages, the subscription fees paid in advance by the consumers at the time of concluding the contract would not be reimbursed to them.

    The plaintiff contested the decision before court, but the first instance court upheld the decision of the defendant. In its judgement the first instance court stated that by omitting this information, the commercials of the plaintiff were misleading, because the "5-day return guarantee" is not an existing consumer right, but a possibility introduced by the plaintiff, and an average consumer would consider the meaning of a "5-day return guarantee" as a possibility to withdraw from the contract in a way as if the contract had never been concluded.

    The second instance court upheld the first instance court's judgement. The second instance court held that the plaintiff should have provided more information on the "5-day return guarantee" as this was a new concept introduced by the plaintiff, and therefore the consumers had no prior knowledge of the details of such right. It is irrelevant that the consumers had the possibility to request further information on the above right, because if the commercial practice misleads the consumers, the infringement is committed. Furthermore, the consumers may not be expected to doubt the validity of the information provided in the commercials.

    The plaintiff demanded the Curia's revision of the second instance judgement, stating that when assessing the commercial practice, the defendant and the second instance court had taken into account the conduct of vulnerable consumers, while according to EU practice, the average consumer is observant and well-informed, who - when introduced to a new concept - does not reach a decision until he has obtained every necessary information.

    The Curia upheld the decision of the second instance court, stating that the average consumer may indeed not be expected to doubt the validity of the information provided in the commercials, and to search for additional information that contradicts the contents of the commercials. Therefore, it is irrelevant that at a later time, the consumers would have had the possibility to obtain full information on the above right.
  • Jogi kérdés
    (1) When the trader introduces a new concept in its commercials which is not an existing consumer right, is the average consumer expected to look for additional information on such concept, or may he rely solely on the information provided in the commercial?

    (2) If the commercial practice introducing such new concept does not include every relevant information, may such practice be considered misleading if the consumer had the possibility to obtain further information on the right offered by the trader?
  • Határozat

    (1) If a trader introduces a new concept in its commercials which is not an existing consumer right, the average consumer is not expected to look for additional information on such concept, because consumers are not expected to doubt the validity of the information provided in the commercials, and to search for additional information that contradicts the contents of the commercials.

    (2) Since consumers are not expected to doubt the validity of the information provided in the commercials, it is irrelevant that at a later time, the consumers would have had the possibility to obtain further information.

    Teljes szöveg: Teljes szöveg

  • Kapcsolódó ügyek

    Nincs találat

  • Jogi szakirodalom

    Nincs találat

  • Eredmény
    The Curia rejected the plaintiff's claims, and upheld the second instance judgement.