Unfair commercial practices during the first lockdown: AGCM v. Sky Italia

With resolution no. 28563 of February 9, 2021, the italian Antitrust Authority (italian “Autorità Garante della Concorrenza e del Mercato” i.e. AGCM) intervened against Sky Italia S.r.l. on consumer law and unfair commercial practices that affected the emergency period between March and April 2020.

The italian Consumer Code – Legislative Decree no. 206 of 2005, amended by Legislative Decree no. 146 of 2007 – by “unfair” commercial practice means the practice that presents the character of opposition to professional diligence and falsity or ability to appreciably distort the economic behavior of the average consumer.

According to the AGCM, these practices were implemented by Sky Italia through three conducts:

1. the non-rescheduling and/or non-reimbursement of the monthly fees paid by consumers for the “Sky Sport” and “Sky Calcio” (i.e. football) package, despite the emergency period in which live sporting events were suspended due to generalized closures;

2. the omission of clear and immediate information regarding the possibility of taking advantage of the reduction in the subscription fee (the so-called “coronavirus discount”) aimed at customers holding “Sky Sport” and “Sky Calcio” packages (and valid for the period of time between 24 March – 6 April 2020);

3. aggressive conduct through the imposition of obstacles and difficulties in accessing and completing the procedure to take advantage of the “coronavirus discount”. Specifically, despite the functioning problems of the web procedure that slowed down the requests for the discount, Sky Italia guaranteed adherence to the promotion only through the online procedure.

With regard to such conduct, the AGCM clarified that:

– although the reimbursement/rescheduling of the subscriptions in question is not the subject of the subscription contract, nor of a provision of the civil code or emergency regulations, the applicable discipline in this case is that contained within the italian Consumer Code.

In this regard, art. 18, paragraph 1, letter h) provides for the obligation of professional diligence, with the consequence that – according to the AGCM – “it must be considered as an unfair practice […] also the conduct of the professional who, even if following the leges artis, behaves in a way that is contrary to good faith or to what the consumer could reasonably have expected“;

– the lack of information – clear and immediate – to consumers regarding the possibility of taking advantage of a “coronavirus discount” for a limited period of time causes an economic disadvantage and integrates the case of deceptive commercial practice (Article 21 of the Cons. Code);

– the malfunctioning of the web system and, in spite of this, the provision of the online mode as the only possible way to obtain the “coronavirus discount” actually determine the inaccessibility of information to customers, who have been induced to “make a decision of a commercial nature which they would not otherwise have taken“, thus integrating the case of aggressive practice (Article 24 of the Cons. Code).

In light of the above violations and of the particular gravity of the same – also considering the emergency period in progress – the AGCM has therefore imposed three administrative sanctions against Sky Italia, for a total value of two million euros.

Luca Davini
Avvocato in Milan and Turin

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