# C_2018408EN.01001201.xml

| 12.11.2018 | EN | Official Journal of the European Union | C 408/12 |
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12.11.2018

EN

Official Journal of the European Union

C 408/12

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Judgment of the Court (Second Chamber) of 13 September 2018 (requests for a preliminary ruling from the Consiglio di Stato — Italy) — Autorità Garante della Concorrenza e del Mercato v Wind Tre SpA, formerly Wind Telecomunicazioni SpA (C-54/17), Vodafone Italia SpA, formerly Vodafone Omnitel NV (C-55/17)

(Joined Cases C-54/17 and C-55/17) (1)

((References for a preliminary ruling - Consumer protection - Directive 2005/29/EC - Unfair commercial practices - Article 3(4) - Scope - Articles 5, 8 and 9 - Aggressive commercial practices - Annexe I, point 29 - Commercial practices which are aggressive in all circumstances - Inertia selling - Directive 2002/21/EC - Directive 2002/22/EC - Telecommunication services - Sale of SIM (Subscriber Identity Module) cards containing certain pre-installed and pre-activated services - Failure to give prior information to consumers))

(2018/C 408/13)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Autorità Garante della Concorrenza e del Mercato

Respondents: Wind Tre SpA, formerly Wind Telecomunicazioni SpA (C-54/17), Vodafone Italia SpA, formerly Vodafone Omnitel NV (C-55/17)

Interveners: Autorità per le Garanzie nelle Communicazioni (C-54/17), Altroconsumo, Vito Rizzo (C-54/17), Telecom Italia SpA

Operative part of the judgment

| 1. | The concept of ‘inertia selling’ within the meaning of Annex I, point 29 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) must be interpreted as including, subject to verifications by the referring court, conduct, such as that at issue in the main proceedings, whereby a telecommunications operator sells SIM (Subscriber Identity Module) cards on which services such as internet browsing services and voicemail services are pre-loaded and pre-activated without first sufficiently informing the consumer of that pre-loading and pre-activation, nor the cost of those services. |
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1.

The concept of ‘inertia selling’ within the meaning of Annex I, point 29 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive) must be interpreted as including, subject to verifications by the referring court, conduct, such as that at issue in the main proceedings, whereby a telecommunications operator sells SIM (Subscriber Identity Module) cards on which services such as internet browsing services and voicemail services are pre-loaded and pre-activated without first sufficiently informing the consumer of that pre-loading and pre-activation, nor the cost of those services.

| 2. | Article 3(4) of Directive 2005/29 must be interpreted as not precluding national rules under which conduct constituting inertia selling, within the meaning of Annex I, point 29 of Directive 2005/29, such as that at issue in the main proceedings, must be assessed in the light of the provisions of that directive, with the result that, according to that legislation, the ARN, within the meaning of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, is not competent to penalise such conduct. |
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2.

Article 3(4) of Directive 2005/29 must be interpreted as not precluding national rules under which conduct constituting inertia selling, within the meaning of Annex I, point 29 of Directive 2005/29, such as that at issue in the main proceedings, must be assessed in the light of the provisions of that directive, with the result that, according to that legislation, the ARN, within the meaning of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009, is not competent to penalise such conduct.

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(1)  OJ C 239, 24.7.2017.

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