The Court of Justice of the European Union (CJEU) ruled that selling SIM cards containing pre-installed and pre-activated chargeable services constitutes an aggressive unfair commercial practice if the consumer is not informed of this in advance, in a judgment returned on Thursday 13 September (joined cases C-54/17 and C-55/17).
In 2012, the Italian competition authority (AGCM) fined two companies for selling SIM cards containing pre-loaded and pre-activated services that were charged to users if they did not expressly ask for them to be deactivated.
The two companies appealed before the regional administrative court of Lazio, which overturned the decisions, stating that such sanctions fell within the competence of a different authority.
In 2016, the Italian Council of State concluded that a mere infringement of information obligations in the electronic communications sector lay within the competence of the communications regulator (AGCom), and that an aggressive commercial practice should in all circumstances be dealt with by the AGCM.
However, it asked the Court of Justice for a preliminary ruling on whether the practice constitutes the ‘inertia selling’ of a service or an ‘aggressive commercial practice’ within the meaning of the directive (2005/29) on unfair commercial practices. It also asked whether the ‘inertia selling’ of a service can be examined in light of this directive.
In its judgment, the Court finds first of all that for a service to be solicited, the consumer must have made a free choice. If the consumer was not informed of the costs of the service or that it had been pre-loaded and activated on a SIM card that he bought, it cannot be considered that he freely chose the provision of those services.
Although it is the responsibility of the national court to determine the typical reaction of the average consumer, the CJEU adds that it is not clear that the average buyer of a SIM card would be aware that it contains pre-loaded and pre-activated chargeable services.
The court therefore concludes that the behaviour in question constitutes the ‘inertia selling’ of a service, therefore an ‘aggressive practice that is in all circumstances unfair’ within the meaning of the directive.
Finally, the court answered the Council of State’s second question in the affirmative. (Original version in French by Lucas Tripoteau)