# C_2017239EN.01001902.xml

| 24.7.2017 | EN | Official Journal of the European Union | C 239/19 |
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24.7.2017

EN

Official Journal of the European Union

C 239/19

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Request for a preliminary ruling from the Consiglio di Stato (Italia) lodged on 1 February 2017 — Autorità Garante della Concorrenza e del Mercato v Wind Telecomunicazioni SpA

(Case C-54/17)

(2017/C 239/26)

Language of the case: Italian

Referring court

Referring court

Consiglio di Stato

Parties to the main proceedings

Parties to the main proceedings

Appellant: Autorità Garante della Concorrenza e del Mercato

Appellant:

Respondent: Wind Telecomunicazioni SpA

Respondent:

Questions referred
   (1)

Questions referred

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| 1. | Do Articles 8 and 9 of Directive 2005/29/EC (2) of the European Parliament and of the Council of 11 May 2005 preclude an interpretation of the corresponding national implementing provisions (namely: Articles 24 and 25 respectively of the Consumer Code) which considers that the conduct of a mobile telephone operator in failing to provide information regarding the pre-loading on to SIM cards of specific telephony services (that is, answering or internet-enabling services) may be classified as ‘undue influence’ and, therefore, as an ‘aggressive commercial practice’ likely ‘significantly’ to curtail the average consumer’s freedom of choice or of action, particularly in circumstances in which no further different material conduct is imputed to that mobile telephone operator? |
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1.

Do Articles 8 and 9 of Directive 2005/29/EC (2) of the European Parliament and of the Council of 11 May 2005 preclude an interpretation of the corresponding national implementing provisions (namely: Articles 24 and 25 respectively of the Consumer Code) which considers that the conduct of a mobile telephone operator in failing to provide information regarding the pre-loading on to SIM cards of specific telephony services (that is, answering or internet-enabling services) may be classified as ‘undue influence’ and, therefore, as an ‘aggressive commercial practice’ likely ‘significantly’ to curtail the average consumer’s freedom of choice or of action, particularly in circumstances in which no further different material conduct is imputed to that mobile telephone operator?

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| 2. | Can point 29 of Annex I of Directive 2005/29/EC (...) be interpreted as meaning that there is an ‘unsolicited supply’ where a mobile telephone operator asks its customer to pay for telephone answering or internet-enabling services, and does so in a situation with the following features:






  — | at the time when the mobile phone contract was entered into, the telephone operator did not properly inform the consumer that the answering and internet-enabling services were pre-loaded on to the SIM card, with the result that those services could potentially be used by the consumer without specifically configuring them; |
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2.

Can point 29 of Annex I of Directive 2005/29/EC (...) be interpreted as meaning that there is an ‘unsolicited supply’ where a mobile telephone operator asks its customer to pay for telephone answering or internet-enabling services, and does so in a situation with the following features:

—

at the time when the mobile phone contract was entered into, the telephone operator did not properly inform the consumer that the answering and internet-enabling services were pre-loaded on to the SIM card, with the result that those services could potentially be used by the consumer without specifically configuring them;

| — | in order actually to make use of such services, the consumer must, however, perform the necessary procedures (for instance, dial the number of the answering service or activate the commands that enable internet access); |
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in order actually to make use of such services, the consumer must, however, perform the necessary procedures (for instance, dial the number of the answering service or activate the commands that enable internet access);

| — | there is no complaint about the technical and operational processes whereby the services are actually used by the consumer, nor about the information relating to those processes and the actual cost of the services, the sole complaint against the operator being the abovementioned failure to provide the information that the services were pre-loaded on to the SIM card? |
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there is no complaint about the technical and operational processes whereby the services are actually used by the consumer, nor about the information relating to those processes and the actual cost of the services, the sole complaint against the operator being the abovementioned failure to provide the information that the services were pre-loaded on to the SIM card?

| 3. | Does the raison d’être of the ‘general’ Directive 2005/29/EC as the ‘safety net’ for consumer protection, and recital 10 in the preamble and Article 3(4) of that directive as well, preclude national rules which bring within the scope of general Directive 2005/29/EC on improper commercial practices the evaluation of performance of the specific obligations laid down by sectoral Directive 2002/22/EC (3) for consumer protection, thereby excluding action by the authority empowered to penalise violations of the sectoral directive in all cases in which the prerequisites establishing an improper/unfair commercial practice may also be satisfied? |
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3.

Does the raison d’être of the ‘general’ Directive 2005/29/EC as the ‘safety net’ for consumer protection, and recital 10 in the preamble and Article 3(4) of that directive as well, preclude national rules which bring within the scope of general Directive 2005/29/EC on improper commercial practices the evaluation of performance of the specific obligations laid down by sectoral Directive 2002/22/EC (3) for consumer protection, thereby excluding action by the authority empowered to penalise violations of the sectoral directive in all cases in which the prerequisites establishing an improper/unfair commercial practice may also be satisfied?

raison d’être

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| 4. | Must the speciality principle established by Article 3(4) of Directive 2005/29/EC be construed as governing relations between legislative systems (general system and sectoral systems), or relations between provisions (general provisions and special provisions) or relations between authorities responsible for regulating and monitoring the relevant sectors? |
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4.

Must the speciality principle established by Article 3(4) of Directive 2005/29/EC be construed as governing relations between legislative systems (general system and sectoral systems), or relations between provisions (general provisions and special provisions) or relations between authorities responsible for regulating and monitoring the relevant sectors?

| 5. | Can the concept of ‘conflict’ in Article 3(4) of Directive 2005/29/EC be regarded as applicable only in circumstances in which there is a radical contradiction in law between the provisions of the legislation on improper commercial practices and the other provisions derived from EU law that govern specific sectoral aspects of commercial practices, or is it sufficient that the latter provisions lay down rules that differ from the provisions on improper commercial practices in relation to the particular features of the sector, such as to give rise to a conflict of laws (‘Normenkollision’) in a specific case? |
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5.

Can the concept of ‘conflict’ in Article 3(4) of Directive 2005/29/EC be regarded as applicable only in circumstances in which there is a radical contradiction in law between the provisions of the legislation on improper commercial practices and the other provisions derived from EU law that govern specific sectoral aspects of commercial practices, or is it sufficient that the latter provisions lay down rules that differ from the provisions on improper commercial practices in relation to the particular features of the sector, such as to give rise to a conflict of laws (‘Normenkollision’) in a specific case?

| 6. | Does the term ‘Community rules’ in Article 3(4) of Directive 2005/29/EC relate solely to the provisions contained in European regulations and directives and to the provisions directly transposing them, or does it also encompass the legislative and regulatory provisions implementing principles of EU law? |
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6.

Does the term ‘Community rules’ in Article 3(4) of Directive 2005/29/EC relate solely to the provisions contained in European regulations and directives and to the provisions directly transposing them, or does it also encompass the legislative and regulatory provisions implementing principles of EU law?

| 7. | Do the speciality principle, established in recital 10 in the preamble and Article 3(4) of Directive 2005/29/EC and Articles 20 and 21 of Directive 2002/22/EC, Articles 3 and 4 of Directive 2002/21/EC (4) as well, preclude an interpretation of the corresponding national transposing provisions to the effect that, whenever, in a regulated sector containing sectoral ‘consumer’ rules, in which the sectoral authority is empowered to regulate and impose penalties, conduct that could be covered by the term ‘aggressive practice’ within the meaning of Articles 8 and 9 of Directive 2005/59/EC, or the term ‘in all circumstances considered aggressive’ within the meaning of Annex I of Directive 2005/29/EC, is identified, the general rules on improper practices must always apply, even when there are sectoral rules adopted to protect consumers and based on provisions of EU law, that fully regulate those same ‘aggressive practices’ and practices ‘in all circumstances considered aggressive’ or, at any rate, those same ‘improper practices’? |
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7.

Do the speciality principle, established in recital 10 in the preamble and Article 3(4) of Directive 2005/29/EC and Articles 20 and 21 of Directive 2002/22/EC, Articles 3 and 4 of Directive 2002/21/EC (4) as well, preclude an interpretation of the corresponding national transposing provisions to the effect that, whenever, in a regulated sector containing sectoral ‘consumer’ rules, in which the sectoral authority is empowered to regulate and impose penalties, conduct that could be covered by the term ‘aggressive practice’ within the meaning of Articles 8 and 9 of Directive 2005/59/EC, or the term ‘in all circumstances considered aggressive’ within the meaning of Annex I of Directive 2005/29/EC, is identified, the general rules on improper practices must always apply, even when there are sectoral rules adopted to protect consumers and based on provisions of EU law, that fully regulate those same ‘aggressive practices’ and practices ‘in all circumstances considered aggressive’ or, at any rate, those same ‘improper practices’?

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(1)  N.B. The progressive numbering of the questions used here differs from that used in the order for reference, in which there were two groups of questions not numbered consecutively.

1

(2)  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’) (Text with EEA relevance) (OJ 2005 L 149, p. 22).

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(3)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51).

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(4)  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) (OJ 2002 L 108, p. 33).

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