argomento: News del mese - Diritto Internazionale e Comunitario
Articoli Correlati: sim cards
On 13 September 2018, in the joined cases C-54/17 and C-55/17, the Court of Justice of the European Union stated that the conduct of sale of SIM cards on which services that can incur fees have been pre-loaded and pre-activated constitutes an aggressive unfair commercial practice which may be penalised by a national authority other than the authority provided for by E.U. law on electronic communications. In the judgment, the Court noted that for a service to be solicited the consumer must have made a free choice. When the consumer has been neither informed of the cost of the services in question nor even of the fact that they were pre-loaded and pre-activated on the SIM card that he bought it cannot be considered that he freely chose the provision of those services. In that regard, it is irrelevant that the use of the services in question required, in certain cases, conscious action on the part of the consumer. Similarly, it is irrelevant that the consumer could have had the services deactivated or deactivated them himself, since he had not been informed of their existence. The Court concluded that, subject to verifications by the national court, those conducts of the telecommunications operators constitute ‘inertia selling’ and, therefore, according to the Unfair Commercial Practices Directive, are an aggressive practice unfair. In addition, stated that there is no conflict between the Unfair Commercial Practices Directive and the Universal Service Directive as regards the rights of end-users. The latter requires the provider of services to include certain information in the contract while the former directive contains rules regulating specific aspects of unfair commercial practices, such as ‘inertia selling’. As a result, the Court declared that E.U. law does not preclude national legislation under which ‘inertia selling’ must be assessed in the light of the provisions of the Unfair Commercial Practices Directive with the result that, according to that legislation, the ARN, within the meaning of the Framework Directive, is not competent to penalise such conduct.